Scottish Devolution: Parties Outline More Powers for Scotland

As the work of the Smith Commission[1] gets underway, political parties have unveiled their proposals for further Scottish devolution. Proposals from the Conservatives, Liberal Democrats, and Labour are set out in a Command Paper that was published recently, while the Scottish National Party and the Scottish Greens have tossed their own ideas into the ring. Although these propositions tend to focus on financial matters, they discuss constitutional issues as well.

The Westminster parties are generally keen to formalize the relationship between Westminster and the devolved administrations. For example, the Tories want to create a joint liaison committee of all the Assemblies and Parliaments of the United Kingdom, while Labour has suggested the creation of an Intergovernmental Council. Both seem like reasonable ideas. The UK appears to be moving inexorably toward federalism, and this will make the process of governing much more complicated. There needs to be a forum where Westminster can sit down with the devolved administrations and discuss issues of mutual concern. The Council of Australian Governments might provide a useful blueprint to follow.

Labour and the Liberal Democrats have also called for the Scottish Parliament to be entrenched in law, though strictly speaking, true entrenchment is impossible under the current constitutional norms. No Parliament can bind its successor, so any legislation that purports to entrench the Scottish Parliament could, in theory, be repealed at any moment. That being said, the chances of a future British government trying to abolish the Scottish Parliament are probably vanishingly remote.

Labour has also proposed putting the Sewel Convention on a statutory footing. The convention states that the Westminster Parliament won’t legislate on devolved matters without the consent of the Scottish Parliament (the Scottish Government has a handy factsheet that explains the circumstances in which the Sewel Convention might apply), and it seems like a sensible step to take.

The suggestions from the SNP and the Greens are where things start to get really interesting. For example, they want to remove Scotland from the jurisdiction of the UK’s Supreme Court[2] and allow the Inner House of the Court of Session and the High Court of Justiciary, sitting as the Court of Criminal Appeal, to become Scotland’s de facto Supreme Court. This seems like a rather insular attitude. One of the advantages of the UK’s Supreme Court is that its justices are drawn from all of the UK’s legal traditions,[3] and this facilitates the cross-pollination of ideas. I think that benefits all the traditions, and it would be a shame if Scots law was cut off from that high-level exchange of ideas.

The SNP also wants to give Scotland a ‘distinct constitutional framework.’ They’re rattled by the idea that the UK might withdraw from the European Convention on Human Rights and/or repeal the Human Rights Act 1998, and they want to make sure that Scotland can continue to implement the protections of the ECHR, regardless of what the Westminster Parliament decides to do. While I’m sympathetic to the underlying principle, the idea of Scotland having a different human rights regime from the rest of the UK seems like it would open up a huge can of worms, and it seems prudent to have one human rights regime throughout the kingdom.

The SNP also wants to beef up Scotland’s role in foreign policy. They want Scotland to be able to influence the work of Britain’s embassies, and they want a say in formulating the UK’s European policies. Furthermore, the SNP thinks that Scotland should also be able to enter into treaties and agreements with other states regarding devolved matters. The Greens want to go even further: they want the Scottish Parliament (as well as the other devolved legislatures) to have a say on whether or not the UK deploys troops.[4]

The UK might want to take a page from Canada’s book when it comes to foreign affairs and federalism. Many Canadian provinces have Ministries of International Relations and send agents abroad to represent their interests (however, their efforts are limited to lobbying since they can’t enter into treaties). There’s certainly a case for letting Scotland (and Wales and Northern Ireland) do the same thing. That wouldn’t go as far as the SNP and the Greens would like, but I can’t see Westminster giving Scotland (or Wales or Northern Ireland, for that matter) the ability to enter into treaties.

The Greens also want to see Scotland make greater use of participative mechanisms such as citizens’ juries and citizens’ assemblies. I think unicameralism is inherently problematic in a parliamentary system—since the executive is required to have a majority in the legislature, it can be harder to check the executive’s power in a unicameral legislature. One option would be to create a second chamber, but the never-ending debate over Lords reform suggests that it would be difficult, if not impossible, to reach agreement on what form it should take. Citizens’ juries/assemblies might be a viable alternative, though of course the devil will be in the details.

It will be interesting to see how the Smith Commission synthesizes these disparate proposals. In theory, it will publish its heads of agreement by November 30, and these will be turned into draft legislation by January 25 of next year. But since Parliament will be dissolved on March 30, the legislation won’t make it onto the statute book until after the General Election.

NOTES

[1] The Smith Commission was set up after the Scottish independence referendum in order to come up with a set of proposals for further devolution. The three main Westminster parties are taking part, as are the Scottish National Party and the Scottish Greens.

[2] At the moment, only civil cases can be appealed to the Supreme Court. For criminal cases, the court of final appeal is the High Court of Justiciary.

[3] I.e., English and Welsh law, Scots law, and Northern Irish law.

[4] Technically, the use of force is a royal prerogative power that can be exercised by Westminster Ministers without recourse to Parliament. However, it has become common for the Government to seek Parliament’s consent nonetheless.

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