Christine O’Neill: what next after Smith Commission?

Picture: HeMedia
Picture: HeMedia
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November 27th was a big day in the world of Scottish constitutional reform with the publication of the Smith Commission proposals and many, many pages of the Scotsman and other newspapers have analysed in detail what implementation of the proposals may mean.

A lot of parliamentary water will need to flow under the bridge before the statutory regime is in place to devolve responsibility for the Crown Estate, to confer on the Scottish Parliament powers over income tax and for the assignation of part of VAT revenue to Scotland.

The process for getting from here to there is something I will discuss at next Tuesday’s What Next for Scotland? conference: with at least one eye to the process which led to the passing of the Scotland Act 2012. Then, as now, things began with the published proposals of a commission, albeit that the Calman Commission was given a rather more leisurely timetable than that given to Lord Smith and his commissioners. There then followed a good deal of political negotiation, if not to say horse trading, particularly in the last weeks leading up to final approval by the House of Lords. In the case of Smith, there is, for now, a relatively broad political consensus and public commitment to take the Smith proposals through in manifestos for the forthcoming UK General Election – but no guarantees.

And the topic of guarantees leads me to one of the most intriguing of the proposals put forward by Smith: that the Scottish Parliament and Government will be made ‘permanent’, with this permanence to be achieved by declaring it to be so in an Act of the United Kingdom Parliament. A little like the earlier legislation to create fixed term UK Parliaments, one of the founding principles of the British constitution – that no Parliament can bind its successors and therefore entrenchment is constitutionally impossible – cannot be curtailed (in legal terms at least) simply by a declamatory provision of the sort which seems to be envisaged. Abracadabra! I don’t think so.

• Christine O’Neill is Chairman of Brodies and an expert in public and constitutional law. She is a speaker at What Next for Scotland? on Tuesday, 2 December, at the National Galleries of Scotland