Devolution proposals process risks continued constitutional instability

• Report: Proposals for the devolution of further powers to Scotland (HTML)
• Report: Proposals for the devolution of further powers to Scotland (PDF)

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.
• 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.
• Questions how any process that does not consider the future of the Union as a whole could provide for an 'enduring' settlement.

Further Concerns

The Committee also expresses concern 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.
• Lord Smith of Kelvin and his Commission were not given adequate time for engagement and consultation with the public or the Scottish and UK parliaments,or for the consideration necessary for such significant constitutional changes.
• The 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 and so undermines confidence in the outcome.

Draft Clauses 1 and 2

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.

Conclusions

Rather than addressing the merits or otherwise of devolving the specific powers proposed in Scotland in the United Kingdom, the report 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."

Chairman's Comment

Commenting Lord Lang of Monkton, 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."

Further information

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