Constitutional implications of the Government's draft Scotland clauses - Political and Constitutional Reform Contents


1  Permanence of the devolved institutions (clause 1)

Policy

19. As the Scotland Office told us: "there has never been any question in the past 16 years that the Scottish Parliament and Scottish Government are anything other than permanent".[21] Nevertheless, in the light of the referendum campaign and the undertakings made in The Vow, the permanence of the Scottish institutions has now become an issue to be addressed as part of the proposed new constitutional settlement.

20. The Vow opened with a declaration of the permanence of the Scottish Parliament:

    The Scottish Parliament is permanent and extensive new powers for the Parliament will be delivered […][22]

This declaratory statement that the Parliament is permanent does not presently have any foundation in law. The Scotland Act 1998 ("the 1998 Act") states that "there shall be a Scottish Parliament" but does not provide that the institution shall be a permanent feature of the United Kingdom's constitutional framework.[23] Nor does the 1998 Act set out any special procedures or grounds under which the Parliament could be dissolved or abolished. The Vow's statement that the Scottish Parliament "is permanent" must therefore have been intended as a political claim rather than a legal one.

21. It is therefore unsurprising that the Smith Commission Agreement put the issue of the permanence of the devolved institutions at the centre of the proposed new constitutional settlement, with the first draft clause focusing on the permanence of the Scottish Parliament. We examine below whether draft clause 1 can effectively implement the terms of the Smith Commission Agreement.

Implementation

DRAFTING ISSUES

22. The Smith Commission Agreement contains two statements about the proposed permanence of the Scottish Parliament which are potentially contradictory. In Lord Smith's foreword to the report he proposes that the Scottish Parliament "will be made permanent in UK legislation".[24] In the main body of the report, however, it is proposed that "UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions."[25] The Smith Commission Agreement does not, therefore, provide unambiguous guidance on what the parties to the Agreement want legislation to achieve with regard to the permanence of the devolved Scottish institutions.[26]

23. Draft clause 1 attempts to implement this aspect of the Smith Commission Agreement by adding a new subsection (1A) to section 1 of the Scotland Act 1998. Under the proposal the 1998 Act, as amended, would begin thus:

    (1) There shall be a Scottish Parliament.

    (1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom's constitutional arrangements.

24. Dr Mark Elliott, Reader in Constitutional Law at the University of Cambridge, argued in his written evidence that draft clause 1 does not actually state that the institutions are permanent much less make them so.[27] It does not, after all, simply state that the Scottish Parliament is permanent but rather that it is "recognised" as such. Professor Tom Mullen of the University of Glasgow, Professor Aileen McHarg of Strathclyde University and the Law Society of Scotland all argued to the committee that the difference is of legal significance.[28] They contended that the clause as drafted appears not to offer a prescription that is identifiably the will of Parliament but merely sets out a statement of fact: it is not what lawyers call a "normative statement" and it is thus incapable of having legal effect. As Professor Mullen put it in his written evidence: "the use of the phrase 'is recognised' seems more appropriate for a statement of fact. It is not clear, therefore, whether a court would treat it as a normative statement capable of being given legal effect."[29]

25. The Scotland Office has nevertheless insisted that:

    The recommendation that UK legislation state that the Scottish Parliament and the Scottish Government are permanent institutions has been delivered by the draft clause. The clause does not replicate exactly the language used in the foreword or the recommendation [in the Smith Commission report]; that is because the Smith Commission Agreement contains "heads of agreement" or a set of agreed recommendations and does not purport to be detailed legal instructions.[30]

PARLIAMENTARY SOVEREIGNTY AND PERMANENCE OF THE SCOTTISH PARLIAMENT

26. Even if clause 1 were to be worded as a normative statement, the question arises as to whether any statute could actually make the Scottish institutions truly permanent given the principles on which the UK constitution works.

27. Orthodox constitutional theory rests on the notion of parliamentary sovereignty.[31] According to this principle, the UK Parliament is the supreme legislative authority in the UK: Parliament can enact or repeal any law; Parliament cannot be overruled by the courts (they cannot challenge the procedures of Parliament; and primary legislation, while subject to interpretation by the courts, cannot be struck down by them); Parliament cannot bind its successors (no Parliament can pass laws that future Parliaments cannot change); and Parliament cannot relinquish any part of its sovereignty.[32]

28. On this basis, we were told by both Dr Elliot and Dr Michael Gordon of the University of Liverpool, orthodox constitutional theory would hold that the ceding of powers by Parliament to devolved institutions (or any other body) cannot be permanent and irreversible.[33] As Dr Gordon put it in his written evidence: "from this perspective, any legislative attempt by one Parliament to place any kind of limitation on the freedom to legislate of future Parliaments would be legally ineffective."[34] Both Dr Gordon and Dr Elliott stressed to us that in the interpretation of statute the courts did seem to have moved away from constitutional orthodoxy to an extent, and that there was now some doubt about precisely where the boundaries now lay (an issue discussed further below).[35] However, on the basis of the evidence we have evaluated we consider it highly unlikely that the courts would go so far as to accept the absolute permanence of the devolved institutions, were an attempt to be made to enshrine it in statute: we were told that there were significant legal precedents which acknowledged the principle of parliamentary sovereignty.[36]

29. The Scotland Office told us that in formulating the draft clause it had taken into consideration "the constitutional principle that one Parliament may not bind its successors".[37] Dr Gordon described the "cautiousness" of the language of "recognition" as "superfluous".[38] Had the Department formulated the clause as a normative statement it would not have risked violating the principle of parliamentary sovereignty, since like any other statutory provision it would be liable to express repeal.

POLITICAL SIGNIFICANCE

30. Dr Elliott has described the draft clause as "legally vacuous."[39] We heard from him, and other constitutional lawyers, that this description of the clause is apt not only because it has not been phrased as a normative statement but also because, even if it were, it could not constitutionally have the effect of making the Scottish institutions permanent.[40]

31. The Minister told us he did not accept the description of the provision as "legally vacuous".[41] He argued that some might consider that the present section 1 of the Scotland Act 1998—which states that "there shall be a Scottish Parliament"—was "superfluous" but that nevertheless he considered that it gave "a very clear statement of intent."[42] We take a different view: it is precisely because the section in question gives a clear expression of the intended will of Parliament that it is not superfluous. Because the UK Parliament has provided that there shall be a Scottish Parliament, there is a Scottish Parliament: the provision is neither superfluous nor legally vacuous.

32. Dr Elliott told us that the apparent legal vacuity of the clause did not mean that it was of no consequence.[43] Many of our witnesses also appeared to agree that the provision for a statutory recognition of the permanence of the Scottish devolved institutions would constitute a political (if not a legal) obstacle to any attempted abolition of those institutions, though we did receive one submission arguing that draft clause 1 would not have any substantial political effect.[44]

33. The Minister also appeared to support the view that the real significance of the new clause was political rather than legal, stressing to us that the continued existence of the Scottish Parliament was "a prerequisite of our United Kingdom."[45] He told us that the Scottish people would find the expression of permanence "helpful and reassuring" and would not be interested in having "a lengthy legal debate about its ongoing validity."[46]

Alternative approaches

34. We considered whether there were other methods which might achieve the policy objective of permanent establishment of the Scottish Parliament with greater certainty under the UK's existing constitutional arrangements.

"CONTINGENT ENTRENCHMENT"

35. We heard from Dr Elliott and Dr Gordon that the courts had in recent years appeared to have moved towards a view that they could, in certain circumstances, act to limit parliamentary sovereignty by holding that there were justiciable issues in respect of UK statutes of a constitutional character.[47] While Dr Elliott told us that it remained highly unlikely that the courts would go so far as to overturn the principle that no Parliament could bind its successors, he indicated that they appeared to be starting to accept that in certain circumstances a Parliament could, through statute, impose restrictions on the manner in which its successors could amend or repeal legislation.[48] Dr Gordon indicated that "Parliament may be recognised as possessing the power to alter the future law-making process (or the 'manner and form' in which valid legislation is enacted) in ways which may 'bind' its successors".[49]

36. Such an approach might thus allow what Dr Elliott has called the "contingent entrenchment" of the Scottish institutions, by stipulating certain preconditions for their abolition, such as "a special majority in the UK Parliament, the consent of the Scottish Parliament, or the consent of the Scottish electorate as expressed through a referendum".[50]

37. The Scotland Office told us that it had not taken this approach in drafting the clause since it considered that "it would be inappropriate to add conditions to any future repeal, as we felt that would invite a scenario that was never envisaged in 1998 and is not envisaged today—a future UK without a Scottish Parliament".[51]

FEDERACY OR FORMAL FEDERATION

38. We also heard about more radical ways of entrenching the devolved Scottish institutions within the UK's constitutional arrangements, including under a constitutional arrangement known as "federacy." Dr Eve Hepburn of the University of Edinburgh described to us how under a federacy a smaller unit within an otherwise unitary state was granted a very high degree of political and economic autonomy, though defence, diplomacy and monetary policy usually continued to be treated as common concerns. What differentiated a federacy from other arrangements between a smaller unit and a larger unitary state was the fact that the arrangement could only be amended or terminated by the mutual agreement of both parties.[52]

39. A more radical option yet would be a formal federation, such as in the Federal Republic of Germany. Under the federation model, all constituent parts of the UK would receive constitutionally-guaranteed equal autonomy. Professor Sionaidh Douglas-Scott of the University of Oxford told us that the creation of a federacy or a formal federation would involve "an issue not of entrenching certain procedural limits [as in the case of 'contingent entrenchment'], but rather of certain substantive limits and an actual renunciation of sovereignty".[53]

40. Here again the issue arises of whether Parliament can, under present arrangements, expressly relinquish any part of its sovereignty. The possibility of establishing a written (or codified) constitution and a dedicated constitutional court also arise in this context. We note that in its contribution to the Government's recent paper on the implications of devolution for England the Conservative Party has contemplated the possibility that a future constitutional convention could consider the case for a Statute of the Union.[54] While the Minister of State for Universities, Science and Cities, Rt Hon Greg Clark MP, was not able to indicate what the scope of any such statute might be, the proposal appears to hold out the prospect that a territorial constitution might in future be established which could define the Union with greater certainty and establish the permanence of its key institutions.[55] It is nevertheless worth noting that written constitutions can, of course, still be amended to abolish institutions and create new ones—so even the approaches outlined above would not entirely guarantee the absolute permanence of the Scottish devolved institutions.

Our view

41. The Scottish Parliament is, to all intents and purposes, a permanent institution. The political circumstances in which the Parliament could cease existence are at present inconceivable. It is, as the Parliamentary Under-Secretary of State for Scotland told us, "a prerequisite of our United Kingdom".

42. While draft clause 1, on the permanence of the Scottish Parliament, may seek to recognise the Scottish Parliament and Scottish Government as constitutionally permanent, we doubt whether such a provision would have the effect of making the institutions permanent in constitutional terms. While we note that clause 1 as presently drafted has been described as "legally vacuous", we consider that there is no mischief in the clause as drafted. The existence of such a statutory recognition of the permanence of the Scottish devolved institutions is likely to constitute a further political (if not a legal) obstacle to any attempted abolition of those institutions.

43. While there are potential mechanisms which would allow for contingent entrenchment of the Scottish institutions—such as the stipulation of certain preconditions for their abolition, such as a majority of at least two-thirds in the House of Commons, the consent of the Scottish Parliament or the wish of the Scottish electorate expressed through a referendum—the introduction of any mechanism into UK legislation which made express provision for the abolition of the Scottish Parliament, however stringent the conditions to be met, would potentially frustrate the policy aim of providing reassurance about the permanence of the institutions. We do not recommend that the clause be redrafted to provide for contingent entrenchment.

  1. That said, we note that it would be possible to achieve the Government's policy aim more effectively if the UK's territorial constitution were codified in a way which clearly set out the respective competences and powers of UK and devolved institutions. A Statute of the Union, or a full written constitution, could provide greater legal certainty over the status of the Scottish institutions, were any further certainty required.



21   Scotland Office (DSB 05) Back

22   "The Vow", The Daily Record, 16 September 2014 Back

23   Scotland Act 1998, section 1 Back

24   Report of the Smith Commission for the future devolution of powers to the Scottish Parliament, November 2014, p 5 (emphasis added) Back

25   Report of the Smith Commission for the future devolution of powers to the Scottish Parliament, November 2014, para 21 (emphasis added) Back

26   See also Dr Mark Elliot (DSB 01) para 2. Back

27   Dr Mark Elliot (DSB 01) para 10 Back

28   Prof Tom Mullen (DSB 11), Law Society of Scotland (DSB 12), Qq1 and 6 [Prof A McHarg] Back

29   Prof Tom Mullen (DSB 11) Back

30   Scotland Office (DSB 05) Back

31   Sovereignty is defined as supreme authority, i.e. having the final say, within a given territory. Back

32   The standard statement of orthodox constitutional theory is A V Dicey, Introduction to the Study of the Law of the Constitution (London, 1915). Back

33   Dr Mark Elliott (DSB 01) para 13, Dr Michael Gordon (DSB 03) paras 6-7 Back

34   Dr Michael Gordon (DSB 03) para 6 Back

35   Dr Mark Elliott (DSB 01) paras 19-21, Dr Michael Gordon (DSB 03) paras 7-9 Back

36   Dr Mark Elliott (DSB 01) para 13, Dr Michael Gordon (DSB 03) para 7, Q6 [Prof I Loveland] Back

37   Scotland Office (DSB 05) Back

38   Dr Michael Gordon (DSB 03) para 12 Back

39   Q3; publiclawforeveryone.com/2015/01/22/the-draft-scotland-bill-and-the-sovereignty-of-the-uk-parliament/ Back

40   Qq1-3, 63 Back

41   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q530 Back

42   Loc. cit. Back

43   Dr Mark Elliott (DSB 01) para 16 Back

44   Prof Tom Mullen (DSB 11) Back

45   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q531 Back

46   Loc. cit. Back

47   A justiciable matter is one on which the courts can adjudicate. Back

48   Dr Mark Elliott (DSB 01) para 19 Back

49   Dr Michael Gordon (DSB 03) para 6 Back

50   Dr Mark Elliott (DSB 01) para 17. See also Q8, Mark Ryan (DSB 02) para 3, Dr Michael Gordon (DSB 03) para 13. Back

51   Scotland Office, (DSB 05) Back

52   Dr Eve Hepburn (DSB 04) paras 16-19; see also Q62. Back

53   Q62 Back

54   First Secretary of State and Leader of the House of Commons, The Implications of Devolution for England, Cm 8969, December 2014, p 27 Back

55   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Qq516-22 Back


 
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Prepared 22 March 2015