Devolution proposals process risks continued Constitutional instability say Lords Committee

The proposals, set out in the Government's command paper Scotland in the United Kingdom: An enduring settlement, reflect the recommendations of the Smith Commission. The Committee expresses astonishment that the UK Government do not appear to have considered the wider implications for the United Kingdom of the proposals. The Committee states that it is not appropriate, or sustainable, to address the issue of additional powers for Scotland alone without considering the knock-on consequences for the wider UK constitution. The Committee questions how any process that does not consider the future of the Union as a whole could provide for an ‘enduring' settlement.

The Committee states that the commitment by the leaders of the main UK-wide political parties to implement the recommendations of the Smith Commission appears to have pre-empted any meaningful scrutiny and discussion of the proposals by the UK and Scottish parliaments or indeed by citizens and civil society. The UK Parliament and Scottish Parliaments have, in effect, been “excluded from the decision making process”. The leaders of the Conservative, Labour and Liberal Democrat parties all agreed, in the ‘Vow' made shortly before the referendum, to devolve extensive new powers to Scotland, and agreed a process by which to do so. Given this prior commitment to implement the recommendations of the Smith Commission, the Committee is deeply concerned at the speed with which the Commission was expected to work. The Committee does not believe that there was adequate time for engagement and consultation with the public or the Scottish and UK parliaments, or indeed sufficient time for the consideration necessary for such significant constitutional changes. The Committee does not criticise Lord Smith of Kelvin or the work of his Commission, recognising that it carried out its work within the timetable and remit that it was set.

The Committee states that process leading up to the proposals set out in Scotland in the United Kingdom does not meet the expected standard for implementing proposals for constitutional change. The fundamental nature of the constitution means that it should be changed only with due care and consideration. The speed with which the process was conducted, along with the lack of any meaningful interaction with the public or the Scottish or UK parliaments, undermines confidence in the outcome.

The Committee considered the Draft Clauses published in the Command Paper. Draft Clauses 1 and 2 would state in statute the permanence of the Scottish Parliament and Government, and the existence of the ‘Sewel Convention', which states that the UK Parliament will not normally legislate on devolved matters in Scotland without the consent of the Scottish Parliament. The Committee says both of these clauses would have a political rather than legal effect, as they go against the well-established constitutional principle that one Parliament cannot bind its successors.  However, they appear to be moving the UK towards a federal model of governance: the Committee calls on the UK Government to clarify whether this was their intention.

The report does not address the merits or otherwise of devolving the specific powers proposed in Scotland in the United Kingdom, but emphasises the need for proper scrutiny.

The report concludes with a call for the UK Parliament to “not simply accept these significant constitutional changes as a fait accompli but to ensure they receive the detailed scrutiny they require and any amendment that may be necessary.”

Commenting Lord Lang of Monckton, Chairman of the House of Lords Constitution Committee, said:

“The recommendations in the Smith Commission report clearly have profound constitutional implications for every part of the UK. However the UK Parliament is expected to pass these proposals into law without significant amendment despite having been, in effect, excluded from the decision-making process. This is not the way to implement significant constitutional change.

“We were astonished to hear that the Government have not properly considered the impact on the rest of the UK of implementing the Smith Commission proposals. Piecemeal, ad hoc changes to the Scottish devolution settlement without wider consideration of their impact could well destabilise the Union as a whole in the longer term. The major UK-wide political parties need urgently to devise and articulate a vision for the future shape of the Union and its devolution settlements. Without this, there cannot be any long-term constitutional stability.”