This year marks the 20th anniversary of the Scottish Parliament. Few argue these days that devolution is a bad thing and fewer still say it should be reversed (although it can, in theory, by a vote in the House of Commons). After two decades, if the devolution settlement has proved detrimental to anything, it’s the Scotland Office.
It’s almost hard to believe that its precursor, the Scottish Office, was once the de facto government of Scotland for more than a century. The Secretary for Scotland (forerunner to its Secretary of State status granted in 1926) was appointed to handle ‘Scotch’ affairs by Prime Minister William Gladstone. The auspices of the Scottish Office developed to consolidate the number of boards and committees which managed Scottish issues like education and health.
Now, as Brexit has all but confirmed, the once prestigious office and its Secretary of State have become a tad redundant. Great offices of the land have come and gone before – such as Secretary of State for the Colonies and Secretary of State for Energy and Climate Change. So should this office be abolished too, saving the taxpayer a minister’s salary and a departmental budget, or radically reformed?
There are no immediate plans to do either, it seems. The 2014 Scottish independence referendum and the entirety of the Brexit process have exposed the Secretary of State for Scotland as an unnecessary sideliner. Since the establishment of the Scottish Parliament, successive incumbents have struggled with the question of whether they are the appointed representative of Scotland in the UK or the representative of the UK in Scotland. Whatever the political stripes of the office-bearer, the role is nowhere near as critical as it once was and is more a token symbolism of Scotland in a predominantly English-led UK Cabinet.
What’s crucial is there feels to be a genuine disconnect between Holyrood and Westminster, or certainly in the eyes of the electorate. A significant problem in the run-up to the 2014 referendum and again with Brexit is where the functions of the Scottish Parliament really begin and end. The Sewel Convention mandates that if the UK Government wants to legislate on devolved areas it must be approved by the respective administrations in Scotland, Wales and Northern Ireland.
What’s interesting is how that operates in practice and how the grey areas of overlap between reserved and devolved matters are resolved. A Memorandum of Understanding (MoU) is an agreement for communicating and resolving disputes in constitutional jurisdictions. They are statements of political intent and, while not legally binding, represent cooperation between the Scottish Government and the UK Government that is seldom acknowledged.
The precedent for establishing an institutional link between the Scottish Parliament and the UK Parliament can be taken further. The Scottish Parliament should vote to appoint the Scottish Secretary of State from a choice of the 59 Scottish MPs returned at a UK General Election. As sure as it is an informality to appoint a Scot to the position, so too it should become the zeitgeist to appoint from the selection of elected Scottish MPs according to a vote made by the Scottish Parliament. While not legally binding, it would be a barometer vote by which the prime minister should appoint the post.
This is not wholly unprecedented in Scotland. The personal dominance of former First Ministers, particularly Alex Salmond, and the SNP’s control since 2007 have obscured the detail that the two great roles in the Scottish Parliament, that of First Minister and the presiding officer, are elected by MSPs. The formality of the chamber voting for the First Minister may seem like a novelty after years of an SNP majority, but it was a mechanism designed to foster a coalition agreement. While the presiding officer has to resign their party membership, both positions are held at the pleasure of the parliament. There is no entitlement, even with the most overwhelming of majorities.
The Prime Minister’s constitutional right to appoint ministers would not be infringed by an MoU on the subject because it would continue the unwritten constitutional nature of the British Government. The depoliticised nature of the new Scottish role would determine the standards of operating behaviour like those for the presiding officer. The Prime Minister could dismiss an individual on those grounds if they broke their commitment to representing and serving Scotland objectively, whatever their political affiliation.
The benefits are numerous. Firstly, Scotland would gain a significant bridge between ‘the us and them’ mentality that currently prevails between Holyrood and Westminster. By making the appointee answerable to the Scottish Parliament, the Parliament would gain a significant stake in influencing policies that may or may not be undertaken with the approval of Scottish MPs (particularly if they are of an opposing party). Whatever the government of the day, and whatever the composition of Scotland’s MPs, the country would still be in a strong position to affect policy relating to Scotland.
The benefits of the UK’s unwritten constitution make the possibility of radical changes possible. No system will ever be perfect, and nor does it theoretically need to be – a very British fudge is what the nation has been used to since time anon.
Brexit seriously risks the fundamental constitutional arrangement of the UK and is prompting a resurgence in calls for a second independence referendum. Now is as good a time as any to discuss how to resolve the disconnect between Westminster and Scottish Parliament, certainly as a mid-way offering between the status quo and outright independence.
The Scottish Parliament was designed to instil cooperation into its institutional character. The mixture of first-past-the-post to elect 73 constituency MSPs and proportional representation to elect 56 regional MSPs was devised to ensure as broad a mix of Scottish political opinion as possible. The position of Secretary of State for Scotland would again be defined first and foremost as being about a duty to Scotland and not loyalty to a political party. As the role is largely superfluous at the moment, there’s a genuine opportunity for some creative zeal, or at the very least a bit of discussion around it.
Devolution has largely reduced the role to that of a concerned uncle, anyway. They want to offer advice but don’t want to step over the line of telling off their brother’s kids in the Scottish Parliament. Now’s the time to be constitutionally brave. If it fails, we can try something else. Such is the story of Britain’s unwritten constitution.