The Smith Commission has produced its long-awaited report on new powers for the Scottish Parliament. For the most part, it’s a fairly wonkish document that focuses on things like income tax and Air Passenger Duty, but there are some constitutional points of interest.
As expected, the Commission wants to entrench Scottish devolution in UK law. It’s not clear how this will work, however, since the doctrine of parliamentary sovereignty means that no Parliament can bind its successor. Therefore, a future Parliament could abolish the Scottish devolution settlement at any time. That being said, the act of entrenchment would still have considerable moral force, so the precise legalities of the situation might not matter.
The Smith Commission also wants to place the Sewel Convention on a statutory footing. Although the Westminster Parliament still possesses unfettered legislative authority over Scotland, the Sewel Convention dictates that it will not exercise this power without the consent of the Scottish Parliament. But this is ultimately just a gentlemen’s agreement, so it seems wise to make it official.
The Scottish Parliament could also end up regulating Scottish elections. Many of these powers are fairly esoteric, though they would allow the Scottish Parliament to give 16 or 17 year olds the vote, which is something the SNP has wanted to do for some time (a cynic might argue that this is because young people are generally more willing to support the SNP!). Interestingly, the Smith Commission proposes that changes to electoral law should require a 2/3 majority for passage. This is something of a novelty (there is no such requirement at Westminster), but it seems like a prudent step since it could prevent the sort of partisan gerrymandering that plagues US politics.
In the end, the Smith Commission’s report feels a bit like rearranging deck chairs on the Titanic. It’s not going to mollify voters who supported independence (Nicola Sturgeon has already pointed out that, even with the Smith Commission’s changes, the Scottish Parliament will still be responsible for less than half the money it spends), and it doesn’t address the UK’s wider constitutional quandary. It creates the illusion of progress while ultimately not accomplishing much. Instead of tinkering with details, Britain should take the time to hash out a definitive constitutional settlement that can stand the test of time.