Tag Archives: Devolution

Robert Hazell:You want a constitutional convention? This is what you need to think through first.

robert_hazell1

In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

A constitutional convention is not the only means of achieving these purposes. If the main objective is to build cross-party consensus, then cross-party talks are the obvious vehicle (as in the cross party talks which preceded the Belfast agreement, or the current talks on further devolution to Scotland led by Lord Smith of Kelvin). If the main objective is to harness expert opinion, then the best vehicle may be an expert commission. In recent years expert commissions have been successfully used to chart the way ahead for further devolution, with the Calman Commission in Scotland leading to the Scotland Act 2012, and a series of commissions leading to the grant of further legislative powers to Wales. But the extraordinary levels of public engagement during the referendum campaign in Scotland have created an expectation that for proposals to command legitimacy, there must be greater citizen involvement in producing them. The Scottish experience lies behind calls for a constitutional convention. But alternative models exist (for example, inter parliamentary talks); and there is no single model for a constitutional convention (see Alan Renwick’s excellent pamphlet, and Fournier et al’s book When citizens decide: Lessons from citizens’ assemblies on electoral reform OUP 2011).

Scope and terms of reference

One argument advanced for a constitutional convention is that it would enable development of a coherent overall reform package, rather than further piecemeal reforms. People have suggested that it should address the unfinished business from previous reforms: an elected House of Lords, a British bill of rights, reform of party funding, a written constitution. A list of reform proposals from all sides of the political spectrum could include the following:

  • Renegotiating the balance of competences. In/Out referendum on EU
  • Human rights. Repeal of the Human Rights Act. British bill of rights. Exit from ECHR, Council of Europe
  • Reform of House of Lords. Further improvements to ‘transitional’ appointed House; directly elected second chamber; federal second chamber to represent nations and regions
  • Reforms to House of Commons. Reducing size of House to 600. Changing the voting system. Votes at 16. Extending expatriate voting rights
  • Reform of party funding
  • A written constitution for the UK. This would offer the widest scope, encompassing all the above.

A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable. Even if the convention is asked just to consider further devolution in the UK, the agenda would be sizeable. It includes the following items:

  • Further devolution to Scotland, of tax and welfare. What else? Devo more or Devo max?
  • Devolution finance, reform of the Barnett formula
  • Further devolution to Wales (Silk report 2 on legislative powers)
  • Further devolution to Northern Ireland (e.g. of corporation tax)
  • Devolution within England: an English Parliament. Regional assemblies, city regions.       Combined authorities, elected mayors, restructuring local government, reforming local government finance
  • Rebalancing the Centre.       English votes on English laws.       Entrenching the devolution settlement. Combined Secretary of State for the Union. Federal second chamber.

This is a big agenda, and a convention charged with considering further devolution would need to have a phased work programme and prioritise certain items. Depending on the political context, it might decide to prioritise work on the English Question (see my earlier blogpost on The English Question).

Timetable

That brings us to the timetable. This must fit the agenda of the next UK government, and the wider political and electoral cycle. What results (if any) are required before the next UK general election in May 2015, the next Scottish elections in May 2016, the introduction of a British bill of rights, or a possible In/Out EU referendum in 2017? Practical realities mean it would be almost impossible to establish a convention before the May 2015 election. In other countries the lead in time required to set up a convention from the formal decision to establish one has typically been six months (see column 2 in the table below). Informal negotiations within the governing party and with other parties can extend that time further: in British Columbia and Ontario it took two years from the initial decision to establish an Assembly to the Assembly starting work. The table below shows the scope, timetable, budget and staffing of previous conventions. It is incomplete, and I would welcome help in filling the gaps and adding details of other conventions, but the data suggest that establishing a convention is a big and complex task, requiring careful planning with long lead in times.

Data about previous constitutional conventions

 

constitutional-conventions

Once established, the timetable of a convention will depend on what it is asked to do. Three of the conventions listed above had a single task, devising a new electoral system. The Irish convention had eight tasks; the Icelandic convention a single huge task, creating a new constitution. The timetable will also depend on the size of the convention, and its working methods. The larger the convention, and the more participatory and inclusive its working methods (eg holding regional meetings), the longer it will take to complete its task.

Establishing the convention: membership, budget, and staffing

Much has already been written about the different options for selecting citizens to serve on a convention so that it is representative of all parts of the UK, and of gender, age, socio-economic background, ethnic minorities, disabled people etc (see Alan Renwick’s pamphlet and the Electoral Reform Society evidence). Ensuring adequate representation from all parts of the UK and all these different variables may result in a large convention: the Electoral Reform Society suggest 200-220 people. That in turn would require a large budget, for servicing large meetings, travel etc. The two Canadian conventions each cost $5m. The Irish convention cost only 1m euros, but was squeezed very tight: those involved say it needed twice the time and twice the money to do justice to its remit. In an age of austerity, with further cuts to come, a Rolls Royce convention may not be feasible. Proponents will need to think how far the size and cost can be scaled back without compromising the integrity of the exercise.

Even a scaled back convention is likely to cost low millions. If the government decides not to establish a convention, it is unlikely that anyone else could afford to do so. But it is conceivable that civil society organisations might try, through a large donation or innovative fund raising through crowdsourcing. They would then have to decide the terms of reference, the timetable, the membership, budget and staffing of the convention, and they would be responsible for the success or failure of the enterprise.

Working methods of the convention

Again, much has been written about this. The convention will need a strong online presence, with an excellent website, podcasts of all its sessions, and imaginative use of social media. It will need to commission and publish evidence, hold public meetings, and it may want to publish working papers and consultation papers. It will also need the ability to commission expert reports, to establish sub committees or expert committees, to commission polling data or other research. An expert panel can help to advise the convention, source and brief the relevant experts, and ensure it draws upon the widest possible research and evidence base.

Links to representative government and legislatures and the political process

Finally, the convention needs to maintain strong links with government and with Parliament to ensure that it carries them along with its thinking. Other conventions have failed in part because they have been too removed from the political process. One way of bringing the two together is to include politicians in the convention, as in Ireland where one third of the members were politicians, and two-thirds ordinary citizens (with mixed success, leading one adviser to suggest that any future convention might have only citizen members and a separate panel of parliamentarians as a conduit and sounding board). Another is to require the convention to deliver an interim report, and then to hold a parliamentary debate so that parliamentarians are informed of the convention’s thinking, and can feed back their initial reactions.

Conclusion

A constitutional convention sounds an attractive idea. But a convention established hastily, overloaded with too many tasks, inadequately staffed or required to report too quickly is almost certain to fail. That will be damaging to the cause of deliberative democracy as well as to constitutional reform. Those who call for a constitutional convention have focused almost exclusively on its membership, and how those members would be selected. As much thought needs to be given to its purpose, terms of reference, timetable, budget, leadership and staffing, as well as its links to government and Parliament. If equally careful thought and planning is given to all those things, a convention stands a much greater chance of success.

Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.

 

This post originally appeared on the Constitution Unit Blog and is reposted with thanks.

 

Notes on Table 1

[i] The government that established the BC Citizens’ Assembly was elected in May 2001. It had promised an Assembly as part of a more ambitious reform package that included new public accounting standards, open cabinet meetings etc. There was some opposition in caucus to the idea of holding an Assembly, so it took time for the Premier to generate the necessary support. An expert, Gordon Gibson, was commissioned to prepare a plan for the Assembly, and reported in Dec 2002. In May 2003 the legislature endorsed the proposal, with amendments, and the government’s proposed chair. In August the selection process started with the first mailing of invitations. Selection meetings around the province went on over the fall and the Assembly was then ready to meet in January 2004.

[ii] It took 18 months from the Premier’s announcement of his intention to establish a Citizens’ Assembly, in November 2004, to the Regulation creating the Assembly and appointing the chair in March 2006. It then took a further six months to set up the Assembly, which started work in September 2006.

 

 

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Aileen McHarg: The Vow: Vote No for More Devo

aileenToday’s papers carry the text of a pledge by David Cameron, Ed Miliband and Nick Clegg that a No vote in Thursday’s referendum is not a vote for the status quo.  Rather, they claim, a No vote will mean ‘faster, safer and better change’ to the devolution settlement than a Yes vote would bring.  This is the fourth commitment to further devolution by the Unionist parties – following the pledge by the Scottish party leaders in June, another by the UK party leaders in August, and the timetable for reform announced by Gordon Brown and endorsed by the other parties last week – and all three parties have, of course, produced individual sets of reform proposals.[1]  However, this latest pledge strengthens the commitment to reform by offering more information on the likely substance of a post-referendum cross-party agreement.  Accordingly, we can probably now say with some confidence that there will be some reform to the devolution settlement in the event of a No vote.

Nevertheless, important questions still remain about the nature of the constitutional alternative to independence that is being offered to voters in Scotland.

Do We Know What Exactly is on Offer?

There are four elements to the party leaders’ latest pledge.

First, they promise ‘extensive new powers for the [Scottish] Parliament’.  The pledge does not specify what these will be, but going by the individual party proposals, the key reforms are likely to involve taxation and welfare powers.  However, as regards further tax devolution, there are significant disagreements between the three parties on how far this should go.  The Liberal Democrats have proposed full devolution of income tax, capital gains tax, inheritance tax and air passenger duty, along with assignment of the proceeds from corporation tax.  The Conservatives have proposed full devolution of income tax, air passenger duty and (possibly) assignment of the proceeds from VAT.  The Labour party proposes only further partial devolution of income tax, and a possible power to set a lower rate of fuel duty for remote rural areas.

On welfare powers, the Liberal Democrats propose that these should be entirely retained at the UK level, while both Labour and (more tentatively) the Conservatives have suggested devolution of Housing Benefit and Attendance Allowance, with the Conservatives also proposing a general power to ‘top up’ UK-wide benefits.  The problem here is that it is not clear how, in practical terms, individual benefits could be hived off from the overall welfare system, particularly given the move away from specific benefits towards Universal Credit.

Secondly, the pledge states that ‘the Scottish Parliament is permanent’.  Again, it is not clear what is intended here.  The Liberal Democrats proposed entrenchment of the Scottish Parliament via a formal declaration of the UK Parliament, while the Labour party proposed that the Sewel Convention (which prevents legislation by the UK Parliament on devolved matters, or amendment of the Scotland Act, without the Scottish Parliament’s consent) should be made legally binding.  However, without broader constitutional reform, neither of these would by themselves secure legal entrenchment of the Scottish Parliament.

Thirdly, the pledge implies that the Barnett formula, which secures a relatively generous allocation of public expenditure to Scotland, will be retained.  It does, however, stop short of clear guarantee – perhaps in recognition of the fact that this is a controversial issue elsewhere in the UK.  And in any case, the significance of the Barnett formula will be proportionately reduced the greater the degree of fiscal devolution.

Finally, the pledge contains a statement of the ‘purposes’ of the Union.  The party leaders ‘agree that the Union exists to ensure opportunity and security for all by sharing our resources equitably across all four nations to secure the defence, prosperity and welfare of every citizen.’  This picks up on an idea proposed by the Liberal Democrats and by Gordon Brown that there should be a declaration of ‘principles of Union’ to guide future development of devolution, and (presumably) assist in resolving conflicts over the allocation of powers between Westminster and Holyrood.  As things stand, however, it is not clear what legal status, if any, such an agreement on the ‘purposes’ of the Union would have.  Moreover, the statement agreed by the party leaders is so vague and bland as to be little help in assisting with the kinds of detailed disputes over which powers should be reserved and which devolved which have arisen in the past and which are likely to recur in future.

There are a variety of other specific reform proposals which appear in the different parties’ devolution proposals.  For instance, Labour and the Liberal Democrats have recommended reforms to the machinery for inter-governmental relations to enhance partnership working.  All three parties have called for reforms to local government in Scotland.  And the Conservatives have proposed reforms to the internal workings of the Scottish Parliament and to the civil service in Scotland.  It is still not clear whether any of these wider issues will be included in post-referendum reforms, nor whether more powers for the Scottish Parliament might be conditional on agreement to these broader changes.

Can the UK Party Leaders Commit to Further Reform?

Assuming that that agreement can be reached on the content of further reforms to devolution, is the pledge by the party leaders a guarantee that such reforms will in fact be implemented?  After all, one of the reasons why the UK government rejected the Scottish Government’s suggestion that there should be a second question on more devolution on the referendum ballot paper was that changes to the devolution settlement could not legitimately be agreed without a UK-wide process.  At the very least, any changes will inevitably require the consent of the UK Parliament and the Scottish Parliament, whether in the form of new primary legislation, or of Orders under the Scotland Act 1998 or the Scotland Act 2012.

In reality, the party leaders probably can ensure, though the operation of the party whips, that sufficient of their members will back any legislative proposals that emerge from a post-referendum agreement process.  Nevertheless, given that we know that there is considerable opposition amongst both Labour and Conservative backbenchers to the transfer of any more powers to Scotland, and likely unhappiness in the Welsh Assembly (and perhaps also the Northern Ireland Assembly) about further privileging the Scots, any legislative proposals can expect to face opposition in the House of Commons, and perhaps especially in the House of Lords.  Given that the Scottish Parliament will remain under the control of the SNP after the referendum, we might also expect that Holyrood will try to use its consent power to seek stronger powers and/or to remove proposals that the SNP does not like, as occurred in relation to the Scotland Act 2012.

Is the Proposed Timetable Feasible?

Given the ongoing lack of agreement on the details of reform, as well as the likelihood of opposition, the timetable proposed by Gordon Brown for post-referendum reforms to be implemented seems extremely ambitious.  The proposal is that cross-party talks would be convened immediately after a No vote in the referendum, with a view to producing a White Paper by the end of October and draft legislation by January 2015.  Since there would then be less than three months before the dissolution of the UK Parliament on 30 March 2015, there seems little realistic chance of legislation being enacted before the General Election on 7 May.  Nor would it be desirable for an important constitutional reform measure like this to be subject to such a truncated period for public consultation and parliamentary scrutiny.

In fact, this does not appear to be what is envisaged.  Instead, the proposal seems to be that the three main parties would commit in their election manifestoes to enacting the agreed draft legislation in the first session of the new Parliament.  However, postponing reform until after the 2015 election adds a new element of political uncertainty.  It is unclear whether manifesto commitments would be honoured if, for instance, the proposals became a major point of contention in the election campaign or if UKIP secured significant electoral support.

Are the Powers On Offer Likely to be Adequate?

Assuming that the parties can agree on a set of proposals for reforming the devolution settlement and get them through the legislative process intact, are they likely to make a substantial difference to the powers of the Scottish Parliament?

Although the media routinely refer to the alterative to independence as ‘devo max’, it seems clear that even the most expansive version of any likely agreement between the parties would fall far short of ‘full fiscal autonomy’, and an even longer way short of giving the Scottish Parliament powers to engage in meaningful reform of the welfare system.  To the extent that the referendum debate has unleashed a desire on the part of the Scottish people for fundamental social and economic reform, these proposals would not allow that desire to be fulfilled by the Scottish Parliament.

Indeed, there is a risk that the Scottish Parliament could in practice be more tightly constrained than it is at present.  As already noted, an increase in fiscal autonomy necessarily implies a reduction in the relatively generous financial consequences for Scotland from the Barnett formula.  During the referendum campaign, the Scottish Government has sought to justify that generous treatment by pointing out that Scotland generates more in tax revenues than it receives by way of public expenditure.  However, that favourable tax position is largely attributable to the assignment of a geographic share of oil and gas revenues to Scotland.  Since there is no proposal to assign or devolve these revenues to Scotland, a Scottish Parliament with enhanced tax raising powers could find itself in a weaker financial position.  Indeed, the desire to rein in the Scottish Parliament’s spending power seems to be a key reason why the Conservative party is relatively keener than the Labour party to extend Holyrood’s fiscal powers.

Moreover, as Paul Cairney has argued, the devolution of income tax by itself gives the illusion of greater fiscal autonomy than it actually brings.  For one thing, the Scottish Government would have limited power to balance changes in income tax with changes in other taxes, so as to enable it to influence social and economic behaviour.  For another, income tax is a tax with particularly high political salience, making it especially difficult to increase.  In the context of ongoing Union, it would also be politically difficult to maintain different income tax levels from elsewhere in the UK.

Is Reform Likely to Produce a Stable Constitutional Settlement?

What is missing from the party leaders’ pledge is any acknowledgment of the implications of further devolution for Scotland for the governance of the rest of the UK.  As is well-known, the UK’s current territorial constitution is highly asymmetric: there are different levels of devolution to Scotland, Wales and Northern Ireland and none in England.  This is a situation which is potentially highly unstable, as the different devolved nations play catch-up with one another.  It is also a situation with high potential for territorial resentment.  We see this, for instance, in concern over the perceived unfairness of the Barnett formula, and in the so-called ‘West Lothian Question’, which asks why Scottish (and Welsh and Northern Irish) MPs should be able to vote on issues in the UK Parliament which affect England only.  This latter problem stems from the lack of institutional differentiation between the governance of England and the governance of the UK.  But its flip side is equally problematic – the inbuilt risk of conflating the interests of the UK with the interests of England.

There has been some discussion during the referendum campaign of establishing a constitutional convention in the event of a no vote to examine the broader territorial constitution, and some interest in a potential federal solution.  However, there are significant challenges in finding a stable, long-term constitutional solution for the UK.  More importantly, the absence of any such promises from the party leaders’ pledge suggests that broader constitutional reforms are unlikely to be a high political priority.  In the meantime, stronger powers for Scotland are likely simply to exacerbate existing asymmetries at the risk of further stoking territorial resentments.

Conclusion

The ratcheting up of the unionist parties’ promises on further devolution suggests a belated realisation that keeping a second question on this topic off the referendum ballot paper was a tactical mistake.  We have known all along that there would have been considerable public support for a half-way house between independence and the status quo, and over the course of the long referendum campaign it might well have been possible to work out some of the problems in the current proposals that have been identified here.

In contrast, by introducing a de facto third option at this very late stage in the referendum process – and very obviously in response to tightening opinion polls – the unionist parties may well discover that their proposals are ‘too little too late’ to stop the momentum towards a Yes vote.  Alternatively, if the No vote does hold up, and the proposals are implemented, it might be a case of ‘legislate in haste, repent at leisure’.

Aileen McHarg is Professor of Public Law at the University of Strathclyde

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

 

[1] Scottish Liberal Democrats (2012), Federalism: the Best Future for Scotland: Report of the Home Rule and Community Rule Commission; Scottish Liberal Democrats (2014), Campbell II: the Second Report of the Home Rule and Community Rule Commission; Scottish Labour Devolution Commission (2014), Powers for a Purpose – Strengthening Accountability and Empowering People; Scottish Conservatives (2014), Report of the Commission on the Future Governance of Scotland.

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Ann Sherlock: Supreme Court ruling on Welsh legislation.

AnnOn 9 July 2014, the Supreme Court delivered its unanimous ruling that the Agricultural Sector (Wales) Bill was within the legislative competence of the National Assembly for Wales.

The Bill had been referred to the Supreme Court in August 2013 by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (hereafter GWA 2006). This provision, whose equivalents in the Scottish and Northern Irish devolution legislation have yet to be used, allows for the referral of a Bill passed by the Assembly if the Attorney General or the Counsel General, the Welsh Government’s law officer, considers that it goes beyond the Assembly’s legislative competence.

This is the second occasion on which a Bill has been referred: the first concerned the Local Government Byelaws (Wales) Bill. The Attorney General argued that the Bill exceeded the Assembly’s competence in that it flouted a general restriction on the Assembly’s competence by removing or modifying a function of a Minister of the Crown. In the event, the Supreme Court ruled unanimously that, while the Bill did remove some of the Secretary of State’s functions, that removal was saved by the exception in the GWA 2006 which permits the removal of a function as long as it is ‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’ In the case of the Agricultural Sector (Wales) Bill, the issue related to whether the legislation went outside the subject areas in which the Assembly has legislative competence.

The Assembly’s legislative competence

As will be known, unlike in Scotland and Northern Ireland where all power is devolved unless expressly reserved (or excepted) to the UK Parliament, the GWA 2006 uses a conferred powers model under which the Assembly may legislate only on those subjects enumerated in the Act. Since 2011, those subjects are set out in Schedule 7 of the GWA 2006. Section 108(4) of that Act provides that an Assembly Act will be within its competence if ‘it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7’ and does not fall within any of the exceptions set out under any of the headings in that Part of the Schedule. (Additional limits on competence, such as those requiring compatibility with EU law and the ‘Convention rights’, were not relevant here.) Section 108(7) of the GWA 2006 states that the meaning of the term ‘relates to’ is to be ‘determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill under review

The Agricultural Sector (Wales) Bill was passed in order to provide for a scheme to regulate agricultural wages in Wales following the abolition of the Agricultural Wages Board for England and Wales under the (UK) Enterprise and Regulatory Reform Act 2013. Until its demise, the Agricultural Wages Board set minimum wages for workers employed in agriculture, and other terms and conditions of employment. The Welsh Government wished to retain a system for regulating agricultural wages within Wales and sought to do this in the legislation under review. In general terms, the Bill preserved a statutory regime for workers in the agriculture sector which acknowledged the distinctiveness of this sector, and sought to safeguard a succession of skilled workers, with provisions for apprentices and trainees. It preserved the level of statutory protections in the Agricultural Wages Order of 2012 which, without the provision of this Bill, would have been revoked from October 2013. That Order recognised different categories of worker based on qualifications, competence, experience and levels of responsibility: all of these grades were above the current national minimum wage. The Bill provided for the establishment of an Agricultural Advisory Panel for Wales which would carry out similar but modified functions to those undertaken by the Agricultural Wages Board.

The Attorney General questioned the competence of the Assembly to make this legislation on the basis that it dealt with employment matters and industrial relations rather than agriculture. The Counsel General submitted that the Bill related to agriculture and on that basis came within the Assembly’s legislative competence.

The Court’s ruling

In reaching its decision, a number of matters to which the Attorney General referred the Court were ruled to be irrelevant to the interpretation of Schedule 7. The Court held that a ministerial statement in Parliament regarding the purpose of the GWA 2006, as being to ‘deepen’ rather than to ‘broaden’ devolution, was too general and ambiguous to be of assistance in interpreting the GWA. It also ruled that it would be inappropriate to consider correspondence which took place prior to the introduction of the Government of Wales Bill in 2005 between the Wales Office, the Welsh Government and Parliamentary Counsel: this correspondence was said to set out the views of the two executives on the scope of the subject of ‘agriculture’ and whether it should include specific references to competence in relation to the Agricultural Wages Board. Since this was correspondence which was never referred to in Parliament or made public, the Court held that it would be inconsistent with transparency and the democratic process to take it into account. Finally, the Court held that the fact that a power had not been transferred under the first or second phases of devolution was irrelevant to the position pertaining under the third, and current, phase of devolution for Wales.

As to how the GWA 2006 should be interpreted, the Court referred to the general principles developed in the previous Welsh Byelaws case, namely that:

  1. whether the provision was outside the Assembly’s competence must be determined by the rules laid down in section 108 and Schedule 7;
  2. the GWA 2006 should be interpreted in the same way as any other statute and its description as ‘an Act of great constitutional significance’ could not be taken, in itself, as a guide to its interpretation;
  3. when enacting the GWA 2006, ‘[t]he aim was to achieve a constitutional settlement’ and it was proper to have regard to that purpose in determining the meaning of words.

The Court examined the subjects listed in Schedule 7, noting the enumeration of agriculture as an area of competence and the exceptions to that particular subject (which relate to hunting with dogs, regulation of experiments on animals, import and export controls and regulation of the movement of animals, and authorisations of veterinary medicines and medicinal products.)   Since an exception will be relevant wherever it appears in Schedule 7, the Court examined the other subject headings and the exceptions listed under each of these. The Court noted the areas listed under the heading ‘Economic development’ (which includes economic regeneration and development and promotion of business and competiveness as areas of competence) and the exceptions listed under that heading. In particular, it noted that occupational and personal pension schemes were exceptions to the Assembly’s competence: this exception related to specific aspects of employment but Schedule 7 did not include any general exception in respect of employment or remuneration of employees.

As to the meaning of ‘agriculture’, which is not defined in the GWA 2006, the Court concluded that ‘agriculture’ could not be intended to refer only to ‘the cultivation of the soil or the rearing of livestock’. Rather, it needed to be understood ‘in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry’. This view was supported by the broad definition that had been given in Schedule 5 to the ‘red meat industry’, the only area of agriculture in which the Assembly had legislative competence prior to 2011.

With agriculture thus defined, the Court had little difficulty in concluding that the Bill was ‘aptly classified’ as relating to agriculture: ‘the purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.’ However, the Attorney General submitted that the Bill would have an effect on employment and industrial relations, neither of which was listed as a subject on which the Assembly had legislative competence. However, the Court observed that neither were these matters specified anywhere in the Act as exceptions to the Assembly’s competence: as noted earlier, certain aspects of employment are listed as exceptions but in the Court’s view the specifying of these particular aspects suggested that there was no intention to create a more general limitation on the Assembly’s competence.

The Court accepted the Attorney General’s submission that the Bill might be characterised as relating to employment and industrial relations. This made it necessary to consider whether a Bill relating to a listed area of competence might still be regarded as falling outside competence if it also related to an area which was not listed as devolved. The Court considered that this issue would not arise very frequently given the relatively extensive list of exceptions set out in Schedule 7: this case arose because, despite not being devolved, employment and industrial relations were not stated to be exceptions to those areas which were explicitly devolved.

The crux of the Attorney General’s argument was that, in reality, this Bill did not relate to agriculture but to employment and industrial relations and should be characterised in that way. He contended that the Court should determine the ‘real’ purpose and objective effect of the legislation. The Court refused. It accepted that, as in this case, there might be more than one way of characterising the purpose and effect of a Bill: a Bill establishing a scheme for regulating agricultural wages could ‘in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classifactory scheme which has to be employed.’ In the Court’s view, the rules in section 108 and Schedule 7 had to be interpreted according to the ordinary meaning of the words used: doing so would achieve a ‘coherent, stable and workable outcome’. In most cases, an explicit exception to a devolved subject area would resolve a question about competence. However, when, as here, no exception to the devolved subject was stated, section 108 still provided the test: provided that a Bill ‘fairly and realistically’ satisfied the test set out in section 108(4) and (7) and did not fall within an exception, it came within the Assembly’s competence. It did not matter that it might also be capable of being classified as relating to a subject which had not been devolved, as long as the latter had not been explicitly excepted. To agree to the Attorney General’s submission would be to add exceptions to those specified in the GWA 2006 and would give rise to uncertainty and to scheme that was ‘neither stable nor workable.’ Accordingly, a Bill which undoubtedly related to a devolved subject would be within the Assembly’s competence even if it could also be characterised as a Bill relating to a non-devolved matter which was not explicitly excepted in the GWA 2006.

General comments

The ruling in this case makes a significant clarification in relation to the competence of the Assembly. The Supreme Court sets out a straightforward approach to determining whether there is competence, which is grounded in the terms of the GWA 2006: as long as a Bill ‘fairly and realistically’ relates to a subject which is listed in Schedule 7, this being determined by reference to its effect and purpose, it will be within the Assembly’s competence unless it falls within an exception listed in Schedule 7 or elsewhere in the Act.

While most cases will be determined by the express grants and exceptions in Schedule 7, there will be other cases where there is less certainty. One such case would arise if the Assembly were to enact legislation providing for a general prohibition on smacking children and young people, by removing the defence of ‘reasonable chastisement’: this was a commitment of earlier Welsh Governments but was not included in the Social Services and Well-being (Wales) Act 2014 and when the issue was raised by the Assembly’s Health and Social Care Committee during the passage of the Bill (18 April 2013), the Deputy Minister expressed concerns that if such a prohibition were included in the Bill, there would be a challenge to the legislation from the UK Government regarding the Assembly’s competence ( Under Schedule 7 is it is clear that that the Assembly has competence in relation to protecting and promoting the well-being of children and young people. Criminal law on the other hand is not listed among the devolved subjects. However, section 108(5) provides that an Act will be within the Assembly’s competence if it is to enforce a provision of legislation that is within the Assembly’s competence or is otherwise incidental or consequential on such a provision.) The Welsh Government has stated that it has no plans to legislate on this issue during the current Assembly term: if such legislation is put forward at a later stage, we can expect another reference to the Supreme Court and a further clarification of the Assembly’s competence.

There is one further reference to the Supreme Court in the pipeline, concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. This Bill allows for the recovery of costs incurred by the NHS in Wales in providing care and treatment to victims of an asbestos-related disease. Interestingly, this Bill has been referred by the Welsh Government’s own law officer, the Counsel General. His statement to the Assembly made clear that he considered the Bill to be within the Assembly’s competence but, aware of the fact that the insurance industry had disputed this throughout the Bill’s passage, wished the matter to be determined by the Supreme Court before its entry into force rather than waiting for what he considered an inevitable challenge afterwards which would be more time-consuming and more expensive. Were the Bill to be found to be outside the Assembly’s competence, this ‘pre-emptive challenge’ avoids the possible need for unpicking transactions made under it. The Counsel General considered it ‘very unlikely’ that such home-grown references would be made very often, although he was reluctant to describe this approach as ‘exceptional’.

While many in Wales consider that a move to a reserved powers model would greatly improve the clarity of the devolution settlement for Wales, some disputes will arise whatever the model. Nonetheless, the particular conferred powers model in Wales with its very specific grants and exceptions, and, as in this case, issues which are not mentioned explicitly as exceptions to devolved subjects, does not help. Accordingly, the recommendation in the Silk Part 2 Report for a reserved powers model was generally welcomed in Wales. However, the current arrangements are likely to be in place for some time still – even if the UK Government were to follow the Silk recommendations, the Silk report does not envisage an Assembly operating under the new system until 2021. In the meantime, and for those disputes which concern ‘borderline’ areas under any model, the clarification provided by the Supreme Court is valuable in improving the workability of the current arrangements.

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

(Suggested citation: Ann Sherlock, ‘Supreme Court ruling on Welsh legislation’ U. K. Const. L. Blog (30th July 2014) (available at: http://ukconstitutionallaw.org/)

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Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

Nick Barber is University Lecturer in Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK government

Mark Elliott: Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom

mark1Earlier this week, the McKay Commission published its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.

The notion of reciprocity—or, more accurately, the lack of reciprocity that is a function of the UK’s asymmetric model of devolution—has always been at the heart of the West Lothian Question. Viewed more broadly, the fact that the West Lothian Question has arisen and remained unanswered for so long is reflective of a typically British approach to constitutional reform—one that treats the constitution as a work-in-progress, and which accepts disjointedness and inelegance as the price of pragmatism and speed. Within that tradition of constitutional reform, loose ends are an inevitable result of an underlying reluctance to confront big-picture questions. The McKay Commission’s approach to the West Lothian Question is of a piece with this dominant approach to constitutionalism in the UK, in that it proposes a practical solution that leaves the some fundamental questions unanswered.

The Commission’s guiding principle—and where that principle did not lead it

The Commission is clear that doing nothing should not be regarded as a viable option. In doing so, they rightly reject the view (advanced by Vernon Bogdanor in evidence to the Commission) that because England has a de facto predominance in the UK, it has “no need to beat the drum or blow the bugle”. Bogdanor argues that if England seeks to exploit its inherent dominance, it may strain the Union to “breaking point”. But this overlooks the potentially fissiparous effect of leaving the West Lothian Question hanging and thereby stoking a sense of disempowerment. This is a sphere in which perception matters: and the risk is that England may perceive itself to be (as Richard Rawlings, “Concordats of the Constitution” (2000) 116 LQR 257, put it) “the spectre at the feast”.

Instead, the Commission concludes that: “Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.” The Commission recommends that this principle be adopted by means of a resolution of the House of Commons. The question then became how this guiding principle should be given practical effect.

One obvious issue is that the “separate and distinct effect” formulation is undeniably vague. As Brigid Hadfield, “Devolution, Westminster and the English Question” [2005] PL 286, put it, “What … is an English law? If it cannot be defined with sufficient precision, then non-English MPs cannot fairly be precluded from voting on it.” By advocating the vaguer “separate and distinct effect” formulation, the Commission implicitly acknowledges that the matter is a complex one in relation to which judgement would have to exercised, rather than something that can be reduced to a clear-cut formula. But acknowledging complexity is not the same thing as resolving it, and the application of the “separate and distinct” criterion would doubtless excite controversy. Such definitional difficulties are not good reasons for shelving attempts to resolve the West Lothian Question (on the ground that it is all too difficult), but there is clearly further work to be done here.

Leaving to one side the inevitable questions of categorisation, how does the Commission propose that its guiding principle should be implemented? It rejects the creation of a separate English legislature, arguing that it might have a destabilising effect and would likely require wholesale constitutional reform. What, though, of the more modest proposal that only MPs representing English constituencies (or MPs representing English and Welsh constituencies) should be allowed to vote on laws likely to have a “separate and distinct effect” upon England (or upon England and Wales)?

The Commission rejects this option too. Its reasons for doing so are largely pragmatic. In particular, it fears that different “classes” of MPs would be created, and that the possibility of “deadlock” would arise: a Government might enjoy a majority in Parliament as a whole whilst lacking an outright majority of English MPs. Such a scenario is alien to the standard modus operandi of the UK system, in which (typically) a single party has an overall majority such that the Executive is able to drive its business through Parliament with (at least a degree of) impunity. In any event, the flip-side of the “deadlock” problem is arguably more profound. It concerns the dual functions ascribed to the post-devolution UK Parliament, whereby it is required to sustain not only the UK Government but also the de facto English Government. This is the sort of big-picture issue that the McKay Commission fails squarely to confront—a point that I develop below.

The Commission’s key proposals

Having rejected an English Parliament and “English votes for English laws” (along with various other options), the Commission concludes that its guiding principle should be implemented (first) by giving a voice to English (or English and Welsh) MPs in relation to relevant Bills, and (second) by making it politically difficult—but not impossible, either as a matter of law or parliamentary procedure—to enact relevant Bills in the absence of majority support on the part of relevant MPs.

As to the first point, the Report says that “views from England
(or England-and-Wales) should be known before a final decision is made about something with a separate and distinct effect”. The Commission identifies a range of ways in which this might be achieved. One possibility is modelled on “legislative consent motions” whereby, under the Sewel convention, the consent of a devolved legislature may be sought to the enactment of UK legislation encroaching upon devolved competence. The McKay Commission envisages that an analogous procedure might be used in relation to UK legislation liable to have a “separate and distinct” effect upon England (or England and Wales), the suggestion being that a Grand Committee consisting of all MPs representing relevant constituencies would render an opinion (by means of a resolution) as to whether the (relevant parts of the) Bill should be proceeded with. Other options identified by the Commission include debating a motion “expressing
 an opinion on that part of a bill relating separately and distinctly to England (or England-and-Wales)”, and the committal of relevant Bills to specially-constituted Public Bill Committees in which the party balance would reflect that which obtained in England (or England and Wales) rather than in the whole House. The Report does not express a firm conclusion as to which of these options should be taken forward; it identifies further questions that would need to be resolved, and suggests that the Government should put its preferred options to the House of Commons, and that a Select Committee should subsequently advise the House on points of detail.

So much for a distinctive English (or English and Welsh) “voice”. What if that voice (by a majority) opposes a Bill or relevant parts of it? Here, the Commission is very clear that MPs representing English (or English and Welsh) constituencies should not have a power of veto. It therefore rejects a “double-lock” procedure, under which it would be necessary, where relevant, to secure the approval not only of a majority of all MPs but also the approval of a majority of English (or English and Welsh) MPs. This reflects the Commission’s view that once the views of MPs representing particularly affected parts of the country have been heard and considered, “the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office”.

However, at the same time as rejecting a “double-lock”, the Commission proposes a “double-count” procedure. This would involve making public not just the names of MPs who voted for and against the Bill, but also the constituencies they represent—with a view to determining whether relevant Bills (or provisions) attracted the support of a majority of MPs representing relevant constituencies. Although no legal or procedural consequences would ensue if a majority of the latter type were not secured, the Commission envisages that “if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage”. The intention, therefore, is to disincentivise the use of MPs from unaffected (or less affected) parts of the country to push through legislation against the wishes of the majority of MPs representing particularly affected parts of the UK, whilst stopping short of preventing such a practice.

In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect to incursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).

By the same token, while English (or English and Welsh) MPs should be able to object to UK legislation likely to have “separate and distinct” effects upon England (or England and Wales), they should not thereby be able to veto such Bills. Instead, the consequences of oibjecting—like the consequences of a devolved legislature refusing to endorse a legislative consent motion—should play out on the political stage. The essence of the proposal, therefore, is to place (for these purposes) the group of MPs representing English (or English and Welsh) constituencies in a position vis-à-vis the (full) Westminster Parliament that is analogous to the position that devolved legislatures occupy in relation to Westminster. And, as the Commission notes, the analogy would likely be extended by the emergence of a constitutional convention corresponding to the Sewel convention. (It is worth noting in passing that the likely prescriptiveness of such a convention would mean that a double-lock requirement might well obtain in effect if not in form, just as the UK Parliament’s capacity unilaterally to interfere in devolved affairs is rendered essentially notional by the Sewel convention.)  

The bigger picture

The analogy outlined above is persuasive as far as it goes—but, arguably, it does not go far enough because it takes insufficient account of two sets of distinctions and the relationship between them. First, there is the distinction between the twin roles performed by all Westminster-style legislatures: viz legislating, on the one hand, and determining the composition of and sustaining the Executive, on the other. Second, there is the distinction between the way in which the Westminster Parliament, on the one hand, and the devolved legislatures, on the other, discharge those roles. The McKay Commission’s focus is upon the way in which the Westminster Parliament discharges its first—i.e. legislative—function. But there is insufficient consideration of the second function—i.e. determining the composition of and sustaining the Executive.

The analogy between devolved legislatures and Westminster breaks down because, unlike the former, the latter has to determine the composition of and sustain a Janus-like Executive: one that functions both as the Government of the United Kingdom and as the Government of England. Within this distinction is concealed the West Lothian Question writ large. As conventionally framed, the West Lothian Question is concerned with micro-level (albeit important) questions concerning Parliament’s legislative function and its exercise in relation to individual Bills. But a macro-level question also arises. Because the Westminster Parliament must sustain not only the UK Executive but also the de facto English Executive, no amount of finessing of the procedure whereby legislation is enacted can get around the possibility that elections to the UK Parliament may yield an Executive that does not accurately reflect the wishes of voters in England (as refracted through Parliament as an electoral college). Indeed, the 2010 election is a case in point, in that the Conservative Party won an overall majority of English but not UK constituencies.

It is in this sense that the McKay Commission might be said to have failed fully to grasp the nettle. The underlying issue that is never fully grappled with is that the post-devolution Westminster Parliament is required to perform a set of functions that may be in tension with one another. And this raises questions about our constitutional architecture more profound than those addressed by the Commission. It does not, of course, follow that that particular nettle should be grasped. As noted at the outset of this post, a certain degree of messiness is an unavoidable byproduct of the approach that characterises constitutional reform in the UK—and history teaches that the results of that approach do not necessarily yield a constitution lacking workability or public acceptance.

Viewed thus, the McKay Commission’s proposed solution to the West Lothian Question is of a piece with the type of constitutionalism that generated the question in the first place. It provides a partial, practical workaround to a problem created by a disjointed set of constitutional changes. Whether all of this showcases the merits of the UK’s highly pragmatic approach to constitutional reform or reflects a failure to confront difficult and fundamental questions is a matter of perspective. In any event, the McKay Commission’s Report shows that Lord Irvine was wrong; the West Lothian Question needed to be asked, and we could do a lot worse than answer it by implementing the Commission’s proposals. It is likely, however, that the concern underpinning Irvine’s reluctance to engage with the question derived from his recognition that once one begins to pick away at the loose edges of the constitution, it may quickly begin to unravel. It follows, then, that while asking the West Lothian Question is not unwise, thinking about it too hard might well be discomforting.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge. 

Suggested citation: M. Elliott, ‘Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom’  UK Const. L. Blog (26th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Devolution, England, Scotland, UK Parliament

Aileen McHarg: The Dog That Finally Barked: Constitutional Review under the Scotland Act

The reviewability of Acts of the Scottish Parliament (ASPs) at common law has, understandably, attracted considerable interest of late, on this blog and elsewhere.  However, the Supreme Court’s decision in AXA General Insurance Ltd v the Scottish Ministers [2011] UKSC 46 confirmed that the primary means of challenging ASPs is upon the grounds laid down in section 29 of the Scotland Act 1998, and there have in fact been several recent cases brought on statutory grounds which merit similar attention.

In comparative terms, the model of constitutional review – if it is appropriately so described – contained in the Scotland Act is a particularly strong one, permitting both pre- and post-enactment challenges; direct and collateral challenges; and inter-institutional and individual challenges.  Yet, as has frequently been observed, the courts have so far played a relatively limited role in policing the boundaries of the Scottish Parliament’s legislative competence.  Indeed, for the first decade after devolution, although there were a few cases, no legislation was found to be ultra vires, there were no inter-institutional challenges, and it was not until 2008 that any statutory ground other than breach of Convention rights was invoked (Logan v Harrower 2010 JC 1).

In the last few years, however, all this has started to change.  To begin with, the initial trickle of cases appears to be growing into a steady stream.  Whereas between 1999 and 2009 there were only nine reported cases in which legislative competence was in issue, since 2010, there have already been eleven such cases.

Secondly, in February and March of this year, the Scottish courts issued their first rulings that provisions were ‘not law’ in terms of section 29 of the Scotland Act.  Cameron v Cottam 2012 SLT 173 concerned section 58 of the Criminal Justice and Licensing (Scotland) Act 2010, which imposed a standard bail condition requiring the accused to participate in identification procedures and to allow prints, impressions or other bodily samples to be taken.  Because the condition was mandatory and therefore not necessarily justified in particular cases, the Court of Criminal Appeal held that it breached Article 5 of the European Convention on Human Rights (ECHR).  In Salvesen v Riddell [2012] CSIH 26, the Inner House of the Court of Session held that section 72 of the Agricultural Holdings (Scotland) Act 2003 was an unjustifiable interference with Article 1 Protocol 1 ECHR.  The 2003 Act abolished a form of agricultural tenancy – the limited partnership tenancy – which was used to prevent tenants gaining security of tenure, and replaced it with a statutory form of limited duration tenancy which gives tenants enhanced rights.  Following a wave of termination notices issued by landlords in anticipation of the legislation being passed, an anti-avoidance measure was inserted into the Bill which retrospectively cancelled the effect of such notices.  Giving judgment for the court, Lord Gill held that the provision went further than was justifiable for anti-avoidance purposes and was in fact punitive, motivated by the sponsoring minister’s view that the landlords’ action was immoral.  On the contrary, according to Lord Gill, there was nothing immoral in landlords exercising contractual rights to which tenants had agreed.

The third notable change is in the character of recent cases.  Although Convention rights remain the most popular ground of challenge, cases are at last emerging on other section 29 grounds.  The first to involve the devolved/reserved competence boundary was Logan v Harrower, which challenged the validity of section 45 of the Criminal Proceedings Reform etc (Scotland) Act 2007, which raised the maximum sentence available upon summary conviction in the Sheriff Court, insofar as it applied to road traffic offences, which are reserved under Schedule 5, Head E1 of the Scotland Act.  Although the challenge failed in the appeal court, it was essentially revived before the Supreme Court in Martin v HM Advocate 2010 SC (UKSC) 40.  The point at issue in both cases was a rather esoteric one, namely whether a general change to the criminal law, carried out for a devolved purpose, but which for reasons of consistency made changes to the law on reserved matters, and would therefore have been intra vires in terms of section 29(4), was nevertheless ultra vires because it altered a rule which was ‘special to a reserved matter’ in terms of Schedule 4 paragraph 2(3).  By a three/two majority, the Supreme Court in Martin held that the rule was not ‘special to a reserved matter’ because it merely altered the procedural route by which a particular sentence could be imposed, rather than the maximum sentence available for road traffic offences.  However, six months later, in Henderson v HM Advocate 2011 JC 96, the Crown had little option but to concede that a similar general sentencing provision – a power to impose an order for lifelong restriction created by section 1 of the Criminal Justice (Scotland) Act 2003 – should be read down so as not to apply to offences under the Firearms Act 1968.  Firearms is also a reserved matter (see Schedule 5 Head B4), and the effect of the impugned legislation clearly was to increase the maximum sentence available in such cases.

Another ASP which has had multiple challenges is the Tobacco and Primary Medical Services (Scotland) Act 2010, which, inter alia, bans displays of tobacco and smoking-related products (section 1) and cigarette vending machines (section 9).  In Sinclair Collis v Lord Advocate 2011 SLT 620, it was claimed that the section 9 ban breached both Article 1 Protocol 1 ECHR and Article 34 of the Treaty on the Functioning of the European Union (TFEU) (free movement of goods).  The Lord Ordinary rejected both challenges, holding that although it was not clear whether the vending machine ban fell within Article 34, it was in any case clearly a justified and proportionate restriction given its aim to protect public health, and that the same applied to the property rights challenge.  The attack was renewed in Imperial Tobacco v the Lord Advocate [2012] CSIH 9, this time on both provisions and on the grounds that they related to consumer protection, which is a reserved matter under Schedule 5, Heads C7 and C8, and modified section 6 of the Union with Scotland Act 1706, so far as it relates to freedom of trade, reserved by Schedule 4 paragraph 1(2)(a).  Imperial Tobacco is undoubtedly the most significant of the recent cases, since it is the first to involve a straightforward claim that an ASP has encroached upon reserved matters, and the Inner House’s decision contains important guidance on how such disputes are to be resolved.  In particular, the judges rejected the Lord Advocate’s argument, based on Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, that, as a constitutional measure, the Scotland Act ought to be given a ‘generous and purposive interpretation’.  Although of constitutional significance, they insisted that the Scotland Act was not a constitution, but rather an Act of Parliament, and should therefore be interpreted in the same way as other statutes.  While statutes have to be interpreted in the light of their purpose, this requires specific evidence as to the background purpose, and in this case, since the purpose of Schedule 5 was simply to effect a division of powers between the Scottish and UK Parliaments, a purposive interpretation did not assist in determining where the dividing line was to be drawn.  Nevertheless, the court concluded that the tobacco bans were within competence: they were not consumer protection measures, and did not affect freedom of trade within the meaning of the Act of Union.

As to future challenges, litigation is widely anticipated in relation to the Alcohol (Minimum Pricing) (Scotland) Bill, again based on the claim that it is a disproportionate restriction on free movement of goods under Article 34 TFEU.  And the prospect remains of a challenge to the competence of the promised independence referendum, unless agreement is reached on an Order under section 30 of the Scotland Act to confer express power on the Scottish Parliament to legislate on this matter.  The independence referendum issue is, of course, also significant as the first instance of an open dispute between the Scottish and UK governments about the vires of proposed legislation.

Much more could be said about the decisions in these recent cases.  One might speculate, for example, as to the factors which led the courts to strike down the provisions in Cameron v Cottam and Salvesen v Riddell, without much show of deference in either case.  One could also explore the apparent differences in approaches to the interpretation of devolution statutes as between the majority and minority in Martin, or between the House of Lords in Robinson and the Inner House in Imperial Tobacco.  However, since both Salvesen v Riddell and Imperial Tobacco have been appealed to the Supreme Court, which is also due to give judgment in another case (ANS v ML) involving the compatibility of section 31(3)(d) of the Adoption and Children (Scotland) Act 2007  with Article 8 ECHR, further discussion might reasonably be postponed until these cases have been finally resolved.

There is, though, another question on which it is equally interesting to speculate: why is it that so many more, and more varied, challenges to the validity of ASPs have been raised in the last few years?  It has been suggested that the main reason for the previous relative lack of resort to the courts is because of robust internal policing of the boundaries of the Scottish Parliament’s legislative competence, both within the devolved institutions, and through inter-governmental negotiation, the latter assisted by political consensus between the Scottish and UK governments for most of the period since devolution.  There is undoubtedly some truth in this view, since there are strong supports within the Scotland Act for political resolution of vires concerns.  These include provisions for pre-legislative declarations by sponsoring ministers and the Presiding Officer that Bills are within competence (section 31), for pre-enactment references by UK and Scottish law officers to the Supreme Court (section 33), and, in some circumstances, for pre-enactment veto by UK ministers (section 35).  Provisions such as sections 30 and 104 which, respectively, enable UK ministers to confer additional powers on the Scottish Parliament and (inter alia) to make changes to reserved matters consequent upon ASPs, as well as the greater than anticipated use of Legislative Consent Motions to allow the UK Parliament to legislate on Scotland’s behalf, also point to a co-operative approach to the achievement of legally effective legislation.  Moreover, such inter-governmental co-operation does not appear to be particularly dependent upon political compatibility: the independence referendum apart, there is no evidence, as far as I am aware, of greater disagreement over competence issues between the SNP at Holyrood and the Conservative/Liberal Democrat coalition in London than there was under previous administrations.

Nevertheless, internal policing of the boundaries of legislative competence cannot be the sole reason why so few judicial challenges emerged in the early post-devolution period, nor can it explain why the rate of challenge has increased so dramatically.  There are at least three reasons why political mechanisms cannot be expected to eliminate all potential challenges: first, the government(s) may identify possible legal problems, but for political reasons decide to legislate anyway; secondly, they may identify potential grounds of challenge, but conclude that they are unlikely to succeed; thirdly, they may simply fail to identify relevant competence issues.  Given the complexity of the reserved/devolved boundary, the reach and intricacy of potential EU constraints, and the open-textured nature of Convention rights, it would seem, on the face of it, that there must remain substantial scope for individual challenges.

So what factors might explain the changing incidence of judicial challenges?  These might include:

    • Greater awareness of the possibilities for challenge on the part of potential litigants and/or their legal advisers;
    • Greater perceived receptiveness of the courts towards vires challenges;
    • Reduced financial or other barriers to litigation;
    • Increased financial or other incentives for potential litigants to challenge legislation;
    • Bolder use of its powers by the Scottish Parliament, particularly in ways that impinge upon powerful interests.

More detailed examination would obviously be needed to establish the relevance of these suggested factors, and to identify other significant considerations.  The likelihood is that different combinations of factors are at work in different cases, and there are of course inherent difficulties in trying to prove a negative – i.e., why challenges have not been brought.  Nevertheless, there is important empirical work to be done in gaining a fuller understanding of the incidence of vires challenges and their motivating causes.  In turn, this would provide a more nuanced appreciation of the practical significance of the Scottish Parliament’s bounded competence, and of the role of judicial enforcement of the devolution settlement as just one policing mechanism amongst others.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

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