Written Evidence
The
Political
and
Constitutional
Reform
Committee’s Inquiry into Devolution after the
referendum
The Law Society of Scotland’s written evidence
October 2014
© The Law Society of Scotland 2014
Introduction
The Law Society of Scotland aims to lead and support a successful and respected Scottish
legal profession. Not only do we act in the interests of our solicitor members but we also
have a clear responsibility to work in the public interest. That is why we actively engage and
seek to assist in the legislative and public policy decision making processes.
This response has been prepared on behalf of the Society by members of our
Constitutional Law Sub-Committee (‘the committee’).
The Committee is comprised of
senior and specialist lawyers (both in-house and private practice).
The Committee welcomes the opportunity to consider and respond to the call for written
submissions on the Inquiry by the Political and Constitutional Reform Committee into
devolution after the referendum.
Question 1: Should England, Wales and Northern Ireland be offered the level of
devolution that has been discussed in relation to Scotland?
The process of devolution is one which has been tailored to the needs of each constituent
part of the UK since its inception. The creation of the Scottish Parliament, the National
Assembly for Wales and the Northern Ireland Assembly reflected the different social,
economic, legal and political structures in each of these jurisdictions. Devolution need not
be a 'one size fits all' concept as it is linked intimately to the wishes of the people affected.
Any proposals to extend further devolution to Wales or Northern Ireland or to create a
devolved assembly in England would need to be formulated, consulted upon and debated
amongst the peoples to be affected. There would be a need for the consent of the peoples
affected to be expressed whether by way of referendum or through the consent of the
relevant legislature.
© The Law Society of Scotland 2014
Page | 1
Question 2: If so, what should be the next stages to take forward devolution in a)
Scotland, b) Wales, c) Northern Ireland, d) England?
In relation to taking further devolution forward in Scotland, the path has already been set
and the deliberations of the Smith Commission and any draft legislation to follow will be of
crucial importance.
In the Society’s view, there would require to be intensive consultation
on the proposals for further devolution and these proposals ought to reflect the Smith
Commission’s remit and findings.
In relation to taking forward devolution for Wales,
Northern Ireland and England, our response to question 1 covers many of the principles
involved.
It would be crucial that any proposals for further devolution in these jurisdictions
should be properly consulted upon.
Question 3: To what extent is the Government’s timetable for considering the future
of devolution realistic?
The Government's timetable for considering further devolution for Scotland is extremely
tight and may produce a scheme which does not have unanimous support from all the
major stakeholders.
In particular, for example the timetable fails to take into account that
the general election in May 2015 may result in a Parliament which has a significantly
different political make up from the current partnership. A coalition composed of different
parties may be in Government and that may have implications for the successful
prosecution of the policy set out by the current Government. It will be important for there to
be extensive public consultation on whatever policy is proposed to be taken forward by the
Government that is formed.
© The Law Society of Scotland 2014
Page | 2
Question 4:
What measures, such as written constitution, could most effectively
entrench future devolution settlements?
A written constitution would be the only way to effectively entrench the future devolution
settlement. The constitutional rule that one Parliament cannot bind a future Parliament
could only be over ridden by a constitution which required weighted majorities for
overturning legislation or through consent in a referendum or consent by the devolved
legislatures. The current Scotland Act 1998 is, in law, no more or less capable of being
repealed or amended by express provision than any other Act passed by Parliament. Its
legal status does not reflect its political status.
A written constitution would however not be a project to be undertaken lightly or with undue
haste. It would require a Constitutional Convention to formulate and consult upon the draft
constitution. Any other way of proceeding would lack legitimacy and would fail to take into
account the views of those who would be affected by such a proposal.
Such a convention would also have to consider whether and how a written constitution
could be introduced and given effect at all in light of the doctrine that parliament cannot
bind itself.
Question 5:
Given that different parties have put forward different proposals for
further devolution to Scotland, what is the best way forward?
The arrangements currently in place which include the deliberations of the Smith
Commission on further Devolution for Scotland seem to be the best way forward in the
current environment.
However, following the publication of the draft Bill resulting from the Smith Commission’s
work, it would be desirable for each political party to state its position on that draft Bill.
Those views could then inform public debate and voting decisions in the General Election
of May 2015.
© The Law Society of Scotland 2014
Page | 3
Question 6: What implications does further devolution to Scotland have for how the
House of Commons should deal with legislation that deals with only part of the
UK?
Further powers for the Scottish Parliament will have implications for the work of the UK
Parliament. If areas such as welfare or taxation are devolved the UK Parliament will not
consider such matters in so far as they affect Scotland. This could impact on the role of
Scottish MPs.
It is a legitimate question to ask why Scottish MPs should be able to vote on English
education policy or law when all MPs cannot vote on Scottish education policy because it is
devolved.
This issue has been considered by Parliament since it was raised by Tam
Dalzell MP many years ago.
As yet, no satisfactory answer has been reached which is
agreed to by all relevant parties.
The most recent examination was the McKay
Commission.
The McKay Commission considered this issue in March 2013. A copy of the Commission's
Executive Summary is attached.
The McKay
Commission Executive
© The Law Society of Scotland 2014
Page | 4
For further information and alternative formats, please contact:
Michael P Clancy O.B.E.
Director of Law Reform
DD: 0131 476 8123
E: [email protected]
The Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh EH3 8EX
www.lawscot.org.uk
© The Law Society of Scotland 2014
Page | 5