A constitutional revolution

No one has suggested that the Scottish Parliament could, in the current political climate, be abolished by Westminster. Picture: Malcolm McCurrach

AT THE Scotsman’s recent conference, What Next for Scotland?, I described the Smith Commission proposal that “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions” as being either meaningless fluff or a constitutional revolution. That soundbite deserves some unpacking.

The first point, of course, is that there is no threat to the Scottish Parliament. No one has seriously suggested that it could, in the current political climate, be abolished by Westminster. Concerns about Holyrood’s “permanence” must therefore be serving a political purpose other than that of shoring up the precarious existence of devolution.

The origins of the proposal can be traced to the work done by the Labour Party and the Liberal Democrats during the independence referendum campaign. Labour contended, in its March 2014 Devolution Commission report, that there should be “constitutional entrenchment” of the Scottish Parliament so that it cannot be abolished. The Liberal Democrats’ “Campbell II” report contained similar proposals, although it suggested that the Scottish Parliament should have a role in creating its own permanence, with resolutions to that effect to be passed at Westminster and at Holyrood.

Perhaps the most high profile trailing of the idea came from former prime minister Gordon Brown during the last stages of the referendum campaign.

Would, then, the “permanence” of the Scottish Parliament amount to a “constitutional revolution”? I think “entrenchment” certainly would amount to a revolution if it turned out to be real – by which I mean that it would be revolutionary if an “ordinary” Act of the UK Parliament could prevent the Scottish Parliament and Government from being abolished by any future UK Parliament.

It would alter one of the foundational principles of the British constitution: that no parliament can bind its successors and there can be no (legal) restraints on what a future parliament might do.

“Entrenching” laws or institutions – protecting them from routine alteration or abolition by normal political processes – is of course perfectly possible. It is normally done, though, via a written constitution (which is favoured by the Liberal Democrats, by some Labour politicians and by the SNP and Greens in the context of independence). That constitution will usually be the product of an “extraordinary” process, for example, the work of a constitutional convention or the result of constitutional amendment. However, the UK doesn’t have such a constitution or constitutional mechanisms for identifying which bits of our constitutional settlement should be capable of being changed in future, and those which should not.

How then are we to know if entrenchment has been achieved? What would be the evidence that the magic has worked? The ultimate, if unhelpful, response is that (in legal terms at least) the answer will not be known until a dispute arises – if an attempt is made to abolish or substantially curtail Holyrood’s powers and that attempt is challenged in the courts. In that event a decision would have to be made by the courts on which law to uphold – that entrenching the Parliament or that abolishing it?

I have already said this scenario seems highly unlikely to arise. It is not, however, even in the British constitution, completely without precedent. The European Communities Act 1972 provided that, on Britain’s accession as a member of the EEC, European law would form part of the British legal system and could be relied upon in the British courts. It was a fundamental principle of European law that it took precedence over any conflicting national laws. At the time a number of constitutional lawyers identified this development as a constitutional revolution, albeit one happening without violence or terribly much drama, but its impact only became apparent in the 1990s following a legal challenge to the Merchant Shipping Act 1988. Westminster attempted to restrict the rights of foreign fishermen and for the first time British courts refused to give effect to an Act of Parliament on the grounds that it conflicted with EU law.

The House of Lords (it would now be the Supreme Court) explained this unpatriotic conduct by laying the blame firmly at Westminster’s door. In enacting the 1972 Act, Parliament had given away a portion of its own sovereignty.

I accept entirely Professor Nicola McEwen’s point that a statement of the Parliament’s permanence can have important symbolic political value. Nevertheless, we can expect that when laws are made those laws are intended to mean something. Certainly, many advocates of the Smith proposal on entrenchment do not seem to believe that a statement of permanence is symbolic only (and certainly not meaningless fluff). They presumably intend a constitutional revolution.

• Christine O’Neill is chairman of Brodies LLP and co-author, with Chris Himsworth, of Scotland’s Constitution: Law and Practice, the third edition of which will be published in February 2015.