Smith is a major constitutional milestone – but on a road to where?

Less commented upon are the constitutional implications of the proposals in the report, some of which are potentially transformational. Beyond parliamentary sovereignty? First is a commitment to make the Scottish Parliament and Government “permanent institutions”. At present the devolved bodies are ‘creatures of statute’ that could – according to the convention of parliamentary sovereignty – be abolished by a simple majority at Westminster, as Margaret Thatcher’s government did when it scrapped the Greater London Council in 1986. So the implication is that the devolved bodies will somehow be protected from normal majoritarian rules. Quite how this will be done is another matter. Simply stating on the face of a bill that something is permanent cannot prevent a future Parliament from repealing or amending the legislation. One option is to include clauses requiring a super-majority in the Commons (and/or Lords) in order to amend the legislation in future. This would be unusual and contentious – though these are unusual times. But in any case, such a clause could itself be removed by a later piece of legislation passed with a simple majority. A related proposal in the Smith report is the commitment to place the ‘legislative consent convention’ on a statutory footing. What was previously known as the Sewel convention states that Westminster will not legislate in a devolved area, nor change the powers of the devolved bodies, without the express consent of the Scottish Parliament. At present the convention relies to a large extent on goodwill. Making it enforceable could be a game-changer, as if the two governments disagree about whether a future piece of legislation in an area such as welfare falls within the terms of the convention the courts may be called upon to resolve the matter. Again there is an implication that parliamentary sovereignty in its absolute form no longer exists, and this alone guarantees that the legislation to enact these proposals will be subject to serious scrutiny at Westminster, which is of course no bad thing. Devolving the domestic Scottish constitution? Second, the Smith report proposes to devolve several powers to the Scottish Parliament over what might be termed the domestic Scottish constitution. In particular, the Scottish Parliament will gain control of its own electoral system, franchise and size (though reform in this area is to require a two-thirds majority at Holyrood, where Westminster majoritarian rules are less entrenched). This is almost certain to lead to extension of the right to vote to 16 and 17 year-olds for Scottish parliamentary (and local) elections. And although this has not been openly advocated, it may also become necessary to expand the size of the Scottish Parliament given the range of new legislative and scrutiny powers to be transferred. Other aspects of electoral policy are to remain reserved – including regulation of parties and the role of the Electoral Commission. Neither does the report propose to give the Scottish Parliament the power to hold another independence referendum – although there is recognition of the right of Scotland to secede in future should the people so choose. An emerging federal system? A third interesting quasi-constitutional area relates to intergovernmental relations. In his preface to the report Lord Smith personally calls upon the Prime Minister and Scottish First Minister to come together to “create a more productive, robust, visible, and transparent relationship” between the two governments. There are some specific ideas in the report such as the creation of new joint ministerial committees (including all the devolved administrations as well as the UK government) in policy areas such as social security and home affairs. Interestingly, on the question of how to agree the UK line in EU negotiations an idea floated is for a UK minister to chair a meeting of the three devolved administrations, as well as another UK minister who would be there to represent England. While such bodies are consultative rather than decision-making bodies, these proposals would move the UK towards something closer to a federal system. So too does the expansion of shared or partnership policy responsibilities. The original 1999 devolution settlement to a large extent sought to create a clear division between devolved and reserved areas of competence. But that is no longer the case. The tax and welfare systems are now to be divided in complex ways between the UK and Scottish institutions, and the two sides will need an extensive array of systems to coordinate their activities. Likewise the Scottish Government and Parliament are to be given new rights of consultation and accountability in relation to UK government bodies such as the BBC and Ofgem. Where all this leads in the long term is an impossible question to answer. It ultimately depends whether devolution acts inevitably as a continuous journey down a path towards independence (as nationalists argue, and some unionists fear), or whether a new devolution package for Scotland can capture sufficient support from both sides of Scotland’s political divide to settle the constitutional debate, for a while at least.