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

4  Conclusion

107. The timetable for drawing up legislative plans for the devolution of further powers, which all the three main UK parties signed up to during the referendum campaign, can be seen in retrospect to have been somewhat over-ambitious and impractical. The result is a set of draft clauses which clearly fall far short of a credible draft Bill and require far more work. Some of them are, as we were told by one witness, "a bit of a guddle".[137]

108. Clauses 4 to 9 seem to be uncontentious and probably do not require much more work; there might be a case for making more matters subject to a "super-majority", as provided for in clause 4. Clause 3 is impenetrably drafted but this may be inevitable, given the complexity of what it seeks to do, if the wholesale redrafting of large parts of the 1998 Act is to be avoided.

109. The real problems lie with draft clauses 1 and 2, which address matters of very significant constitutional importance in a less than satisfactory manner. Arguably they do not even meet the brief set out in the Smith Commission report, insofar as it can effectively be met under our present constitutional arrangements.

110. There are clearly difficulties in establishing beyond doubt the permanent status of the Scottish Parliament in the UK's constitutional arrangements, given the constitutional principle of parliamentary sovereignty. The legal claims made in draft clause 1, while seeking to affirm the permanence of the Scottish Parliament, have the capacity to be misunderstood.

111. Nevertheless, the political fact is that the Scottish Parliament is effectively permanent and its abolition is inconceivable. Draft clause 1 does nothing to weaken this fact. As the Parliamentary Under-Secretary of State told us, it is an essential prerequisite of the United Kingdom. There are means whereby the Scottish Parliament could be recognised as a permanent constitutional institution, but these would require broad reform of the basis of the UK's uncodified constitution. We have explored such means in the course of this Parliament as part of our inquiries into constitutional codification and a constitutional convention.

112. Since the publication of the draft Scotland clauses, the Secretary of State for Wales has put forward proposals for further devolution to Wales. The Government has accepted several recommendations of the second report of the Commission on Devolution in Wales (the Silk Commission), including recommendations on recognising the permanence of the National Assembly for Wales and formalising the legislative consent procedure. The Government agrees that "the Assembly should be formally recognised as permanent and that the Assembly and Welsh Government are permanent parts of the United Kingdom's constitutional arrangements", and states that this should be "enshrined in legislation."[138] The Government also proposes that "the convention [on legislative consent] should be formalised, and placed on a statutory footing, in a substantively similar manner as the Government intends in regard to the Sewel Convention in Scotland."[139] We recommend that the Wales Office, when preparing legislation to give effect to the Government's proposals for further devolution to Wales, take account of the conclusions and recommendations of this report in respect of the drafting of the constitutional clauses for a Scotland Bill.

113. The incoming administration, when introducing legislation to implement the Smith Commission Agreement and other cross-party proposals on constitutional reform which affect the Union, must ensure that further proposals for constitutional reform are worked out in full recognition of their consequences for all parts of the United Kingdom and in full consultation with Parliament. It is axiomatic that adequate opportunity is given for a fully informed public debate on the Smith proposals before a full Bill is finally brought before Parliament.

114. In March 2013 this Committee recommended that the Government should examine the case for a convention to look at the future constitutional structure of the UK, "because of the impact of the incremental political and constitutional change that has taken place over the past two decades, and the effects of devolution—including the lack of a devolved settlement in England—on relations between the different elements of the UK and how it functions as a whole."[140] The cross-party commitments given to the people of Scotland mean that new powers for the Scottish Parliament are being introduced to an extremely tight timetable. We recommend that the Government seek to establish, at the earliest opportunity, a mechanism for considering in the round the effect of the proposed devolution settlements in Scotland, Wales and Northern Ireland, together with the trends towards decentralisation in England, and examining the measures required to ensure that such changes strengthen the Union as a whole.

137   Q32 Back

138   Cm 9020, para 2.2.4 Back

139   Cm 9020, para 2.3.10 Back

140   Political and Constitutional Reform Committee, Fourth Report of Session 2012-13, Do we need a constitutional convention for the UK?, HC 371-I, para 112 Back

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