Scotland might have voted no but it seems that the debate on the UK constitution is just beginning. In this month’s blog I want to look at devolution and its legal basis. This (monster) blog will focus on devolution to Scotland (as opposed to Northern Ireland): this is partly because of personal prejudice (I’m a Scot) but also because more has been written about Scottish devolution than Welsh or Northern Irish devolution. This is a huge and fascinating topic and, while I have written on constitutional matters before, I would encourage you to read beyond the four corners of the blog.
“That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom”
So begins clause 1 of the Union with England Act 1707, commonly known as the Act of Union and the document which formally joined the two parliaments of England and Scotland into one at Westminster. Until that point, although the crowns of Scotland and England had been united in 1603, each nation retained its own Parliament: England and Wales had the House of Commons and the House of Lords; Scotland had the Thrie Estaitis (Three Estates) which, although one body, contained various components (http://en.wikipedia.org/wiki/Parliament_of_Scotland). The Thrie Estaitis was dissolved and the Commons and the Lords were expanded to take in Scottish members.
It’s often said in the UK that we do not have a written constitution but that’s not quite right. Our “constitution” can be found in various written document (e.g. the Bill of Rights, the Human Rights Act, Erskine May, case law); a better way of describing it is as uncodified (unlike the US or Frence constitutions which are clearly codified). The Act of Union is one of these constitutional documents. If you read it (http://www.legislation.gov.uk/aosp/1707/7/contents), you’ll see it reflects many of the contemporary concerns of early 18th century Scotland. But the basic principles of the Union are there: free trade between Scotland and England; the supremacy of Westminster; and the independence of the Scottish courts and church. Indeed, today Scotland has its own separate and distinct legal system to that of England.
The idea of a Scottish regional assembly had been discussed for a previous hundred years. When the parliaments had been united in 1707, the role of the state was minimal in people’s lives. The decision to ensure the independence of the established church in Scotland was a political decision (it was different in structure and beliefs to the Church of England, and previous attempts by Charles I to unite to two had precipitated the Civil War). However, the practical effect was a form of devolution. The church in Scotland functioned, in many ways, like local authorities do now. It was responsible for education, poor relief and keeping the peace.
Throughout the 19th and 20th centuries, the state began to take over many of the roles the church had played regarding what today we might call “social welfare”. As Westminster’s powers grew, it was recognised that Scotland’s own needs demanded special attention resulting in the founding of the Scottish Office in 1885. This was the beginning of a long debate about to what extent power should be devolved to the home nations. The Scotland Act 1998 mark the manifestation of the idea that power should be devolved, but various alternatives were proposed and almost adopted.
As far back as 1913, the Government of Scotland Bill proposed (http://archive.spectator.co.uk/article/7th-june-1913/6/scottish-home-rule ) “home rule” for Scotland (and a separate bill proposed something similar for Ireland, then part of the UK). The Great War put the bill on hold and it was forgotten in the economic disaster of the 1920s and 30s. In Ireland, the Great War also ended home rule; instead, a bloody civil war resulted in the partition of Ireland with Northern Ireland obtaining its own devolved assembly. Interestingly, Wales was not considered for devolution.
The 1960s and 70s saw renewed calls for devolution. Two bills were proposed in the late 1970s which offered devolution to Scotland and Wales. Referenda in Wales and Scotland were held on whether those nations wanted the provisions of the bills to be adopted: Wales overwhelmingly voted no; Scotland voted yes by a narrow margin but because only 63% of voters turned out, the requirement that at least 40% of the electoral population vote yes was not met.
Devolution was proposed again in the 1990s and this time both Scotland and Wales voted yes in 1997. The Scotland Act 1998 (http://www.legislation.gov.uk/ukpga/1998/46/contents/enacted) and the Government of Wales Act 1998 both form the backbone of devolution in those nations today, although in both cases the powers of each assembly have been increased (http://www.legislation.gov.uk/ukpga/1998/46/contents). Northern Ireland’s situation is more complex given its troubled history. Its assembly was suspended during the Troubles, re-established in 1998 and then suspended at various times since then.
“There shall be a Scottish Parliament”
So begins clause 1 of the Scotland Act 1998, the act which established the Scottish Parliament. Or perhaps re-established the Parliament? Winnie Ewing opened the inaugural session of the Scottish Parliament famously declaring that “The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened”. However, romantic sentiments aside, her analysis does not quite stand up to legal scrutiny. The current Scottish Parliament is a creature of statute. It derives its corporate existence from the sovereign power of the Westminster Parliament. Westminster is entitled to abolish the Scottish Parliament and legislate in areas normally reserved to the Scots. Indeed, it often encroaches on Holyrood’s power. The Sewel Convention (or Legislative Consent Motions (http://www.scottish.parliament.uk/parliamentarybusiness/Bills/19017.aspx) are an attempt to manage this.
The devolution proposals throughout the 20th century were varied, unsymmetrical and mostly responses to political pressures at specific points. For instance, Wales has been unenthusiastic about devolution, rejecting it in 1979 and only endorsing it by a tiny margin in 1998 (and further powers since then). This and the fact that Wales does not have its own jurisdiction have meant that fewer powers have been devolved to Wales than to Scotland and Northern Ireland. An interesting exercise is to compare the three Scottish devolution settlements to each other. The 1913 bill was a radical and extensive devolution of many aspects of Westminster’s power to Scotland; the 1978 act was limited in its devolution, only allowing Scots powers over certain devolved functions with everything else remaining under Westminster’s control (in this respect, it mirrors the 1998 Welsh devolution settlement); and today, everything is devolved to Scotland unless explicitly reserved to Westminster, which represents a middle way between 1913 and 1978.
The uneven and ad hoc nature of devolution has thrown up various theoretical problems, none more vexing than the West Lothian Question. While Scotland, Wales and Northern Ireland have their own assemblies, English-only issues are dealt with at Westminster and MPs who sit in Scottish seats can vote on those issues. The question gets its name because it was most famously asked by Tom Dalyell, the MP for West Lothian, in 1977 during a debate about devolution:
“For how long will English constituencies and English Honourable members tolerate … at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?”
The question was not a new one: Northern Irish MPs, despite Northern Ireland having its own Parliament between 1921 and 1972, could vote on matters affecting the rest of the UK. William Gladstone had asked the same question of Irish MPs in Westminster when proposals for Irish home rule were debate. Despite the issue being a continual theoretical problem, in MPs from Wales, Scotland and Northern Ireland have rarely been decisive in passing English-only bills. However, there have been instances when Scottish MPs have tipped the balance. The legislation creating university tuition fees and foundation hospitals was only passed because of the votes of Scottish MPs, despite those policies not affecting Scotland. (See the Economist for an interesting and informative analysis of the issues http://www.economist.com/blogs/economist-explains/2014/09/economist-explains-18).
The West Lothian Question is a lesson in the workings of the UK constitution. Despite having been asked for decades, no government has felt compelled to answer the question: partly because there has not really been a pressing reason for it to be answered; and partly because to answer the question requires some fundamental reorganisation of the UK constitution. Answering the Question re-orders the constitution because it would require that MPs representing Scotland, Wales and Northern Ireland would somehow be disenfranchised from voting on certain bills, effectively rendering them a different type of MP to their English counterparts. If this were to be the case, it could affect the ability of those MPs to become part of the executive: is it fair or even practicable that an MP representing a Scottish seat be education secretary when most education policy is devolved to the Scottish Parliament?
There are numerous proposals which have been suggested of late to resolve or partially resolve the Question (see the McKay Commission’s report for a summary of those ideas and its recommendation http://webarchive.nationalarchives.gov.uk/20130403030652/http:/tmc.independent.gov.uk/). The viability of each of these proposals is essentially a political one, as indeed all constitutional questions are at heart. However, there is a legal perspective too. I noted above that the theory of parliamentary sovereignty means that Westminster has ultimate control over devolved assemblies. But arguably that principle has been eroded in recent years. First, the peace process in Northern Ireland has recognised Northern Ireland’s right to secede from the UK and reunited with Ireland if its people want; and the recent Scottish independence referendum has recognised Scotland’s right to secede too. Those rights are essentially political but have found legal expression (e.g. the Good Friday Agreement for Northern Ireland). Given the traditional nature of the UK constitution (that is, conventions and traditions establish correct practice and principle), recognising that legislative bodies (e.g. Stormont and Holyrood) speak for peoples with the right to determine their own futures imbues those bodies with a quasi-sovereign power. What would happen if, as has been suggested, the majority party in the Scottish Parliament is pro-independence?
I would suggest that a definitive resolution of the West Lothian question would be another nail in the coffin of Parliamentary sovereignty. Creating a group of lawmakers who deal only with English legislation creates a body which speaks for England, alongside ones which speak for the other home nations. As with Scotland and Northern Ireland, reassigning power from Westminster in effect reassigns sovereignty. Much has been said about creating a “federal” UK, and English votes for English laws – a sort of United States of Britain as opposed to the United Kingdom. Consider the relationship between states and the federal government in the USA: how is power allocated? Where does sovereignty reside? And can states leave? Think also about the EU and its distribution of power and sovereignty. Can these two examples offer any advice for the UK as it reconfigures itself?
“…a distinctively English principle…”
An interesting postscript to this analysis is to consider the (somewhat bizarre) case of MacCormack v Lord Advocate (http://www.bailii.org/scot/cases/ScotCS/1953/1953_SC_396.html). The case was brought by a Scot who objected to Her Majesty styling herself Elizabeth II as she is only Elizabeth Ii of England but Elizabeth I of Scotland (and of the UK). First, it’s a Scottish case: in reading it you will see interesting stylistic differences between English courts and Scottish courts. Secondly, it offers a uniquely Scottish view of the UK constitution and the principle of Parliamentary sovereignty. Lord Guthrie’s analysis contradicts my own above: he suggests that unlimited Parliamentary sovereignty is perhaps not so unlimited, and that the UK Parliament is not, in fact, merely an extended English Parliament but a new and distinct body to it. What are the implications of his judgment? Have other courts agreed? Does any of it really matter?