Are lawyers right to be confused about the proposal in the Smith Commission report to entrench the Scottish Parliament as a permanent institution?
Christine O’Neill of Brodies makes a most cogent point: “It’s either meaningless fluff or a constitutional revolution” (The Scotsman conference report, 4 December). The first clause of the Scotland Act 1998 states: “There shall be a Scottish Parliament.”
What would be meaningful about supplementing that in a new statute with a form of words such as “the Scottish Parliament is deemed to be a permanent institution”? The answer can only be that it would be pointless. The parliament is a creature of statute.
Its powers can only be enhanced or reduced by statute. Its very existence can be taken away by statute. Of course, Professor Nicola McEwen makes a valid point that some gesture towards permanence would be important symbolically. It may well mean that for generations the House of Commons would be wary ever of questioning the devolution settlement that the Smith Commission might help create.
But the fact remains that the UK does not have a written constitution. One of the main implications of that is that no government can bind its successors. Any act of parliament can be repealed provided there is a sufficient majority of MPs to wish that outcome.
There is little sign that Westminster is prepared to move to a written constitution simply to help resolve the Scottish question. It will be interesting to see, in January, what form of words is actually proposed for the new legislation. All Scottish MPs are bound to ask themselves whether making an issue of this is worth the fight.
It will be difficult enough ensuring the new Smith Commission proposals become law without confusing voters with an abstract argument about whether Holyrood should be a permanent feature of the British political landscape.