The Road Not Taken: the Government of Scotland Bill

The years leading up to World War I were a time of great constitutional upheaval in the United Kingdom. The protracted struggle over Irish home rule is well known.[1] But while Parliament was agonizing over Ireland, backbench Liberal MPs were trying to bring home rule to Scotland as well. Although their efforts have been largely forgotten, their proposals were remarkably prescient, and they anticipated many aspects of the Scotland Act 1998.

There were actually two versions of the Government of Scotland Bill—the first was introduced in 1912 by Henry Cowan, the second in 1914 by Ian Macpherson. Although there were a number of differences between the bills, the basic gist remained the same, and both were heavily influenced by the Government’s plan for Irish home rule.

The key provision was that Scotland was to have its own legislature known as the Scots Parliament. It was to be a unicameral body of 140 members drawn from the Westminster Parliament’s Scottish constituencies.[2] As was the custom at the time, each constituency would have returned two members (except for Dundee, which would have returned four).[3] However, the Scottish universities were specifically disfranchised despite the fact that the Westminster Parliament still had university constituencies.[4] Interestingly, the 1914 version gave women the right to vote in Scottish parliamentary elections even though they wouldn’t be allowed to vote in Westminster elections until 1918.[5]

The Scots Parliament was to have wide-ranging legislative authority, though the two versions of the bill spelled that out in different ways. While the 1912 version set out a laundry list of responsibilities that would be devolved to Scotland,[6] the 1914 version simply gave the Scots Parliament power to legislate for the “peace, order, and good government of Scotland.[7]” However, both versions also contained a lengthy list of subjects that were reserved to Westminster, including the monarchy, foreign policy, and the honors system.[8] Both bills also forbade the Scots Parliament from passing laws that abrogated the free exercise of religion,[9] though the Church of Scotland would remain Scotland’s established church.

It’s interesting to note that the Government of Scotland Bill would have subtly altered the Sovereign’s role in Scotland. Although the Crown remained at the heart of the Scottish constitution (e.g., the King would have been a constituent part of the legislature,[10] and the formal head of the executive branch[11]), the Sovereign was to be represented by a viceroy known as the ‘Lord High Commissioner[12]‘ who would have been equivalent to a Governor-General.[13] Significantly, most of the Crown’s constitutional functions would have been exercised by the Lord High Commissioner acting in the King’s name.

This seems like a bit of a puzzling choice. While it made sense to have a royal locum tenens in faraway places like Canada and Australia, the need for one in Scotland is less obvious. Given Scotland’s proximity to the rest of the United Kingdom, it’s hard to see why the King couldn’t perform his constitutional functions in person. Indeed, the Scotland Act 1998 made no provision for any sort of viceroy, and the government in Edinburgh has a direct relationship with the Queen. It’s probable that the creation of a viceregal office for Scotland was supposed to place the country on the same footing as Ireland, where the Sovereign was customarily represented by a Lord-Lieutenant.[14]

In the end, the Government of Scotland Bill never made it onto the statute book, and the arrival of World War I in 1914 finally scuppered the project. But it’s interesting to think about what might have happened if the Government of Scotland Bill had received royal assent. Would home rule have nipped nationalism in the bud, or would it have been its catalyst? If Scotland had been able to insulate itself from Margaret Thatcher’s policies, would the Tory brand still be as toxic north of the border as it is today?

NOTES

[1] The Conservative opposition used its majority in the House of Lords to frustrate the passage of the Government of Ireland Bill. Although the Parliament Act 1911 prevented the Lords from vetoing legislation outright, they could still delay it for up to two years.

[2] Clause 4(1) [1912]; clause 7(1) [1914].

[3] Clause 4(2) [1912]; clause 7(2) [1914]. The Westminster Parliament didn’t move to single-member constituencies until 1950.

[4] Clause 4(1) [1912]; clause 7(1) [1914]. Ironically, the practice of treating the universities as a special constituency originated and Scotland, and it was imported to England under James VI/I. The practice was abolished in England in 1950.

[5] Clause 7(6) [1914]. However, they had to be at least 25 in order to vote.

[6] Clause 9 [1912].

[7] Clause 2 [1914].

[8] Clause 10 [1912]; Clause 2 [1914]. The 1914 version adds several other topics, including relations with other part of the Empire and coinage. It also affirms that, despite the existence of a Scots Parliament, the Westminster Parliament still possesses plenary legislative power over Scotland.

[9] Clause 11 [1912]; clause 3 [1914].

[10] Clause 1 [1912]; clause 1(1) [1914].

[11] Clause 13 [1912]; clause 4(1) [1914].

[12] The title of Lord High Commissioner has a long history in Scotland. After the Union of the Crowns, the Sovereign was ordinarily resident in England, and they would appoint a Lord High Commissioner to represent them in the Scottish Parliament. The title survives to the present day in the form of the Lord High Commissioner to the General Assembly of the Church of Scotland, who is the Monarch’s personal representative to that body (though the Lord High Commissioner has no authority over the Assembly, and he or she is little more than a very special spectator).

[13] Clause 2 [1912]; clause 4(2) [1914].

[14] This title of Lord-Lieutenant didn’t survive the partition of Ireland in the 1920s. The Crown’s representative in the Irish Free State was styled a ‘Governor-General’ since it was a self-governing dominion, while his counterpart in Northern Ireland was simply styled a ‘Governor’ since Northern Ireland was a subordinate part of the United Kingdom. The office of Governor of Northern Ireland was abolished in 1973, and the office was not revived when a devolved government was set up in 1998.

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