Devolution after the Brexit hurly burly

The object of the following study is to reflect on the strength of Scotland’s representation and voice in the Union in today’s unpredictable times as the UK Government navigates the departure of England, Wales, Scotland and Northern Ireland (together with Gibraltar) from the EU.

The UK Parliament was itself born in 1707 through the pooling of English and Scottish sovereignty. As the Bishop of Oxford put it in his sermon preached before Queen Anne at St Paul’s Cathedral on 1 May 1707 (being the day appointed by the Queen for a “general thanksgiving for the happy union”), later published by Royal command: “Our Two Kingdoms are this day united… The names of England and Scotland are lost in that of Great Britain.”

One may assume that Queen Anne and the Bishop, not to mention the body politic of the day in England and Scotland, would have been incredulous had it been prophesied that in 2013 the UK Government would adopt as authoritative an opinion of Professors Crawford and Boyle whose "alternative view" as to the Union, upon which the professors jointly based their "rUK continuator" theory,(1) was that "as a matter of international law England continued albeit under a new name and regardless of the position in domestic law, and was simply enlarged to incorporate Scotland" (p 74, para 35). This "alternative view" that Scotland ceased to exist, but England did not, fits as a square peg in a round hole with the fact that international treaties were not entered into either by England or Scotland after the union of the Crowns in 1603, apart from the Union Treaty of 1707 itself – the Crown from 1603 onwards chose to conduct its international relations as Kings and Queens of Great Britain.(2)

The "alternative view" of the professors likewise fits ill with the fact that the Parliaments of England, Scotland and Great Britain were all mentioned, and support derived from them, in certain of Britain’s international post-Union dealings. Thus in 1713 a Treaty was entered into by Queen Anne on behalf of Great Britain with the Netherlands, relating to the Hanoverian succession for the Crown of Great Britain.(3) After narrating that the succession had been provided for "in several Parliaments both of England and Scotland", article II referred to the post-Union Succession to the Crown Act in the Parliament of Great Britain, and continued: "no foreign power… has a right of calling in question any provision made by a parliament of Great Britain".(4)

In other words, what was being relied on was "any provision made by a Parliament of Great Britain", and not by the Parliament of Great Britain.

A powerhouse Parliament?

In a note from the Office of the Secretary of State for Scotland published 23 March 2016, recording that the Scotland Bill which accorded fresh powers to the Holyrood Parliament had received the Royal Assent, Prime Minister Cameron remarked: "The Scotland Bill will deliver a powerhouse parliament for Scotland and enable us to meet our commitment to make Holyrood one of the most powerful devolved parliaments in the world."

It happens that one of Scotland’s closest neighbours, the Faroe Islands, has itself a form of devolved Government. Whereas the Faroes exercised their devolved power to remain outside the European Union (then the EEC), when Denmark chose to join (click here for its role in foreign affairs), it is clear that the Holyrood "powerhouse" Parliament lacks the power to prevent Scotland losing its position within the EU.

Whether or not the Prime Minister was guilty of hyperbole, it is interesting to observe that the UK Government seems prior to the EU referendum not to have considered, at any rate in the February 2016 Foreign & Commonwealth Affairs Office document The Process for Withdrawing from the European Union (Cm 9216), that the presence of a "powerhouse Parliament" in Scotland might give rise to problems in the event that the UK was to withdraw from the EU.

The above document certainly anticipated (para 4.7) that there would be serious implications for Gibraltar, and that Northern Ireland would be confronted with difficult issues about the relationship with Ireland. It is curious that the document does not go on to anticipate that withdrawing the UK as a whole from the EU involved the risk of a constitutional confrontation with the Holyrood "powerhouse" Parliament, "protected" by the Sewel convention.

Who is afraid of the Sewel convention?

Section 2 of the Scotland Act 2016 states that the Westminster Parliament will "not normally" legislate for Scotland on devolved matters except with the agreement of the Scottish Parliament. The convention clearly conveys, according to the authoritative 16th edition (2015) of Bradley, Ewing and Knight’s Constitutional and Administrative Law, that such legislation will not (p 20) or should not (p 39) happen. The editors note (p 25) that there was a convention prior to 1965 that Westminster would not exercise its sovereignty over the domestic affairs of Rhodesia except with the agreement of the Rhodesian Government. They remark that when the Smith cabinet unilaterally declared Rhodesia’s independence in 1965 the UK Government enacted the Southern Rhodesia Act, giving the UK Government power to legislate in such fields. They make the point that "As constitutional rules often give rise to reciprocal obligations, one consequence of a breach may be to release another office-holder from the normal constraints that would apply."

One may ask rhetorically, might the UK Government seek ultimately to rely on the "necessity" of implementing the UK-wide EU referendum vote as a reason for overriding the Sewel convention? (That is supposing such overriding were indeed to be the outcome of the "hurly burly".) It is hard to envisage however what trigger on Scotland’s part, comparable to that which was used to justify British resumption of legislative power in Rhodesia, is likely to arise.

Adding “retained” to “reserved” – a trade mark devalued?

The trade mark of the 1998 devolution settlement was that sched 5 to the Scotland Act contained the reserved matters – and everything else was devolved. Article 29 of the 1998 Act laid down however that the Scottish Parliament did not have competence to legislate incompatibly with EU law. (Similar issues arise with Wales.) The controversy now is as to what should happen in areas not hitherto reserved but currently subject to the requirement to abide by EU law.

The Scottish (and Welsh) Governments contend that the very nature of the devolution settlement requires that it should be accepted that all that is needed to be done in the EU (Withdrawal) Bill is that the requirement to obey EU law should be removed. The UK Government on the other hand remains seemingly committed to replacing this constraint with a new provision, in clause 11 of the bill, preventing the Scottish (and Welsh) Parliaments modifying a newly created category of "retained EU law". It is complained that this would effectively devalue the trade mark of the devolution settlement, as areas not reserved in sched 5 would be involved.

Thus on 4 December 2017, in the course of debate at committee stage on the EU (Withdrawal) Bill, Joanna Cherry QC commented (at this link, col 728): “Three committees of this House have heard evidence about clause 11 – the Scottish Affairs Committee, the Exiting the European [Union] Committee, and the Public Administration & Constitutional Affairs Committee – and the weight of that evidence from a number of senior, distinguished lawyers from both north and south of the border has been that there are very real concerns that clause 11 'drives a coach and horses through the devolution settlement'.”

On 6 December 2017 David Mundell announced in the Commons that the Government would table amendments to clause 11. Whether these prove enough to bring the "coach and horses" to a halt remains to be seen.

Level of representation

The number of Scottish seats in the House of Commons, which since 1885 had varied between 72 and 74, was reduced to 59 following the establishment of the Holyrood Parliament, by the Parliamentary Constituencies (Scotland) Order 2005 (SI 2005/250).

The initial price that Scotland paid for having a non-sovereign devolved parliament was thus that of losing 13 of the seats by which it was then represented in the sovereign Parliament of the UK. Ahead lies the risk of losing another six as and when the Commons has its current membership of 650 reduced to 600.(5)

It is worth remembering in this context the cautionary words of Lord Nicholls delivered in 1999 as a member of the House of Lords Committee of Privileges. The issue had been referred to that committee as to whether the House of Lords Bill then before Parliament would, if enacted, "breach the provisions of the Treaty of Union between England and Scotland".

Lord Nicholls stated: "There is room for argument that the Treaty of Union would be breached if Scotland ceased to have adequate representation in both Houses of the United Kingdom Parliament. If that politically unthinkable event should ever happen, there would be scope to contend that this constituted a breach of a condition implicit in the Treaty."(6)

Hearing England's voice

On 19 September 2014, the day following the Scottish independence referendum, the then Prime Minister Cameron announced:

"We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer. So, just as Scotland will vote separately in the Scottish Parliament on their issues of tax, spending and welfare so too England, as well as Wales and Northern Ireland, should be able to vote on these issues and all this must take place in tandem with, and at the same pace as, the settlement for Scotland." (Speech accessible here.)

In making this announcement the then Prime Minister was seemingly oblivious to the fact that Scotland had already forfeited around 18% of its representation in the Westminster Parliament as the price for the establishment of the Holyrood Parliament.

1998 also saw the setting in motion of Welsh and Northern Irish Assemblies in an inherently asymmetric devolution process. No equivalent body was created for England. The thinking behind the 1998 Government’s asymmetrical devolution programme emerges inter alia from evidence given by Secretary of State for Justice and Lord Chancellor Straw, to the House of Commons Justice Committee inquiry Devolution: a Decade On, which reported in May 2009.(7)

In his evidence to the committee on 13 May 2008, Straw stated at Q682:

“The prior point about the so-called 'West Lothian question' is whether or not you accept that the United Kingdom's makeup in terms of its component parts is asymmetrical because of the huge dominance of England in terms of resources and of population and actually the resilience of its economy as well. If you do as I do and accept that, in the end, English members can determine anything in the Union and, if we got together, we could completely dominate the Union if we wished, if we had a common purpose, as it were, against Scotland, Wales and Northern Ireland.”(8)

Advantage England

Whilst Scotland is left with a devolved non-sovereign legislative body, the effect of the EVEL process is to allow those MPs elected to represent English/Welsh constituencies to “borrow” in a manner of speaking the UK sovereign Parliament in the process of enacting English/Welsh laws when this procedure is deemed to apply (explained here). The Cabinet Office in its Explanatory Guide to the proposal observed that:

"English Votes for English Laws addresses the so-called 'West Lothian Question' – the position where English MPs cannot vote on matters which have been devolved to other parts of the UK, but Scottish, Welsh and Northern Ireland MPs can vote on those same matters when the UK Parliament is legislating solely for England. As devolution to Scotland, Wales and Northern Ireland is strengthened, the question of fairness for England becomes more acute. These proposals change the process by which legislation is considered by the House of Commons so that MPs with constituencies in England (and where relevant England & Wales) are asked to give their consent to legislation that only affects England (or England & Wales), and is on matters that are devolved elsewhere in the UK. Those MPs will therefore have the opportunity to veto such legislation. The change will strengthen England’s voice, just as devolution has strengthened the voices of Scotland, Wales and Northern Ireland within the Union, so that the legislative process is fair for everyone."

The greatest problem with the above explanation, so far as Scotland is concerned at least, is that it completely ignores the fact that the UK Parliament retains the right to legislate with the help of English MPs in devolved areas, subject only to the Sewel convention. Whereas the explanatory document states that "English MPs cannot vote on matters which have been devolved to other parts of the UK", this is arguably precisely what will occur if the EU (Withdrawal) Bill remains as it stands at present and is so enacted whilst legislative consent is withheld.

Paper tiger?

Where then will Scotland stand when the hurly burly of Brexit is done? Perhaps the only certain prophecy to be made is that if it should transpire that the price Scotland has paid for its devolved Parliament is with hindsight too high, there will be no "refund" offered. On the other hand should the Brexit process reveal that the Sewel convention is, at the very time when it should be respected, nothing but a paper tiger, then the already threadbare justification for EVEL would be shown to be without merit.

References

(1) See Journal online, www.journalonline.co.uk/Magazine/59-7/1014185.aspx where the author argues that the “rUK continuator” analysis by Professors Crawford and Boyle is legally and historically unsound. See too the comment “Dissolving the Union”, accessible at www.journalonline.co.uk/Referendum/1014265.aspx
(2) Parry, C (ed), The Consolidated Treaty Series, 1648-1919 (New York: Oceana, 1969-81). (Hereinafter CTS.)
(3) The Treaty was confirmed in 1716, 1728 and 1748 see CTS, vol 27, 1710-1713, 373. Further treaties concluded as between Queen Anne and Louis XIV of France and Philip V of Spain in 1713 likewise referred to the laws or Acts of Parliament of Great Britain during the reigns of William III and Queen Anne concerning the Hanoverian succession. Although these are not specifically identified, the drafters of the treaties no doubt had the same laws of the Parliaments of England, Scotland and of Great Britain in mind as identified in the Treaty with the United Provinces. As to the Treaty with France see CTS, vol 27, 1710-1713, 475-501. The relevant articles are IV and V at 480-482. As to Spain see CTS, vol 28, 295-347, in particular art V at 327.
(4) CTS, vol 27, 1710-1713, 387-388.
(5) See Boundary Commission for Scotland 2018 Review of UK Parliament Constituencies, accessible at bcomm-scotland.independent.gov.uk/2018_westminster/index.asp
(6) Committee for Privileges, Second Report of the Committee for Privileges (The Stationery Office, 1999), accessible at publications.parliament.uk/pa/ld199899/ldselect/ldprivi/108i/10801.htm
(7) House of Commons Justice Committee, Devolution a Decade On, Fifth Report of Session 2008-09 (The Stationery Office, May 2009), vols 1 and 2, HC 529-I and II. Accessible at www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/529/52902.htm
(8) Emphasis added. Accessible at: www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/529/8051304.htm. See too the author's article, "Balancing the right to decide", at Journal online (December 2014), accessible at: www.journalonline.co.uk/Magazine/59-12/1016739.aspx. Additionally The McKay Commission, Report of the Commission on the Consequences of Devolution for the House of Commons (March 2013) is accessible at: webarchive.nationalarchives.gov.uk/20130403030728/http://tmc.independent.gov.uk/wp-content/uploads/2013/03/The-McKay-Commission_Main-Report_25-March-20131.pdf