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When the current Labour Government came to power 1997, it diligently implemented its manifesto commitment to devolve a measure of self-government to Scotland and Wales. In doing so, it claimed that the process of devolution would not upset the UK constitution, and the sovereignty of the Westminster parliament would be retained. But is this right? Or does devolution inevitably tip the constitutional balance towards a federal state?
Background The doctrine of Parliamentary sovereignty in its traditional, Diceyan, form asserts that Parliament can make or repeal laws without restriction. In An Introduction to the Study of the Law of the Constitution Dicey famously says that the Acts of Union with Scotland could be repealed as easily as the Dentists Act. Moreover, Acts of Parliament are not open to challenge in the courts, as is the case in some jurisdictions.
The modern expression of this doctrine is contained in Lord Reid's speech in Pickin v British Railways Board:
In earlier times many learned lawyers seemed to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete. The doctrine of Parliamentary supremacy, together with the fact that there is one head of state and one executive, support a view that the constitution of the UK is unitary, rather than federal, even though the UK is comprised of regions with their own claims to statehood. By definition, a federal system is one in which the constitution regulates the distribution of power between the central and regional governments.
The Government's position: 'devolution, not federalism' The Labour executive has repeatedly stressed that its plan is for 'devolution, not federalism'; in the original White Paper that introduced the proposals, it said:
The United Kingdom Parliament is and will remain sovereign in all matters. In the debate on the Scotland Bill, Ministers came under intense attack for appearing to advocate a federalist system. Scottish Office Minister Mr Henry Galbraith, said:
We propose devolution, not federalism or independence and it is written unambiguously and factually into clause 27(7)... The Labour proposal was for a measured transfer of power to Scotland and Wales, reserving the right of the Westminster Parliament to legislate for the devolved regions if it so desired. Moreover, although Scotland gains the power to pass primary legislation, the power is not absolute.
First, the Scotland Act (1998) defines the matters on which the Scottish Parliament may not legislate. Broad restrictions apply to amendments to the Acts of Union, the European Communities Act (1972), and a number of other Acts of constitutional significance. Then there is a long list of 'reserved matters': defence, treason, many financial and transport matters, and others. The Act also contains a provision by which proposed new legislation may be referred to the Privy Council for a ruling on whether it is within the competence of the Scottish Parliament or not. We are already seeing such references being made.
Second, a Bill of the Scottish Parliament still requires symbolic Royal Assent before becoming law; there is a procedure whereby the Secretary of State for Scotland may block a Bill from being sent for Royal Assent.
With Parliamentary sovereignty intact, and an overall controlling role for the executive in Westminster (in the person of the Secretary of State for Scotland), the Government feels that its devolution scheme is not a form of federalism.
Does devolution weaken the doctrine of Parliamentary sovereignty? There are a number of arguments to support a view that the Parliamentary sovereignty is weakened by devolution.
Powers devolved cannot easily be recovered The powers devolved are considerable, particularly in Scotland. Experience has shown that it can be very difficult to retain control over the subordinate region if sufficient power is devolved.
As an example, one could look to Northern Ireland; it experienced about 50 years of devolved government under the Stormont system. During this period there developed a convention that Westminster would not legislate for Northern Ireland on matters that had been devolved; indeed, such matters were not even debated.
It could be countered that legislation affecting Northern Ireland was sometimes passed in defiance of this convention. And, of course, the Heath Government did claw back direct control of Northern Ireland in 1972. The extent to which the ensuing bloodshed was made worse by the re-imposition of direct rule than it would otherwise have been is, of course, a matter of debate. However, if the Ulster Vanguard Movement -- which could muster 60,00 supporters at its peak -- had taken the initiative to seize control of the Parliament, it is not clear whether the Westminster Government would have been able to reassert control at all, without outright war.
However, the Scottish situation is different to that of Ulster. First, Scotland has a very distinct sense of its own nationhood that has no counterpart in Ulster. Second, Ulster has had to contend with the competing claims of annexation by Eire and integration with the UK. In practice, experience in Italy and Spain has shown that granting greater self-governance to regions that clamour for 'independence' tends to reduce, rather than increase, overall levels of dissatisfaction with the central administration.
Legislation needs judicial support Neither the devolved nor central legislatures are responsible for deciding which forms of conduct fall within and which outside the law: this is the job of the courts. If legislation by the Scottish Parliament is in conflict with that of Westminster, which will the Scottish courts give effect to?
There may be scope for the divided loyalties of the Scottish courts to be problematic. The problem may be most likely to arise when there is a conflict with European Union (EU) legislation as well. If the Scottish courts decide that Scottish legislation is in accord with the EU, and UK legislation is not, then they will be seen to be supporting the Scottish Parliament over Westminster.
At present there is no evidence of this. It is not clear whether Scotland's different view of Parliamentary Sovereignty will have an effect on the relationship between the courts and the Scottish Parliament. The Scottish courts have, in fact, asserted their controlling role over the Scottish Parliament, at the behest of Westminster. In Whaley v Lord Watson of Invergowrie, considering whether the Court of Session had jurisdiction to grant an interdict against an MSP to prevent a Bill be introduced, Lord Cooper said:
...the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law.
In addition, in MacCormick v Lord Advocate Lord Cooper says that parliamentary sovereignty:
...has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey... At present, both the Edinburgh and Westminster parliaments are dominated by the Labour political agenda, so the scope for conflict is small. It remains to be seen whether this remains the case if there is a radical divergence in political complexion after a General Election.
Does devolution lead to federalism? There are arguments to suggest that it might encourage the development of federalism, even if it doesn't make it inevitable.
Constitutional relationships outside the UK Scotland has historically had a more co-operative relationship with the European states than England has. Scotland now has its own direct links to the EU; Edinburgh houses a regional office of the Commission and the European Parliament. Scotland has joined forces with Bavaria, Catalonia, Wallonia, and others in asserting a right to be treated as self-governing nations within the EU. This emerging 'parallel diplomacy' may not be entirely welcomed by the UK Government.
Scottish MPs in Westminster: can't live with 'em, can't live without 'em The problem remains of the representation of the devolved regions at Westminster. The UK Government is reluctant to reduce the size of the representation too much, because to do so would give the impression of dissociating the devolved regions further than is comfortable. An argument that the continued existence of Scottish MPs at Westminster will lead to increased federalism might run something like this:
There are matters relating to Scotland that can only be legislated at Westminster. Therefore Scottish representation is required in Westminster. Since devolution, the elected representatives of England enjoy no right to legislate for Scotland on purely Scottish matters, but Scottish MPs can legislate for England. Therefore representation of Scottish MPs in Westminster should be reduced. Therefore the matters that can only be legislated at Westminster must be correspondingly reduced.
Therefore the relationship between the UK and Scotland becomes increasingly federal. A solution might be simply to restrict the matters on which Scottish MPs could vote; it has been suggested that the Speaker could decide whether a Bill under consideration is one that is relevant to Scotland or not.
However, it is an anomaly that there needs to be representation of Scotland at Westminster, and yet the size of that representation cannot adequately be determined.
In reality, the anomaly may have purely theoretical, rather than practical, significance. Moreover, it is insignificant compared to the anomaly that existed in the final years of the last Conservative administration, where Scotland returned no Conservative MPs and yet was subject to a Conservative administration. Nevertheless, it is immediately apparent that if there was a separate legislative body for England, itself subject to a UK-wide Parliament, the anomaly would vanish.
Conclusion The Acts of devolution set out matters over which legislation is reserved to Westminster, but the length and complexity of these provisions makes it likely that disputes will arise. Where such disputes arise in Scotland in particular, the courts could be put into a position where their divided allegiances to the UK and to Scotland could cause difficulties. Moreover, if the UK Parliament attempts to legislate for matters that have been devolved, despite the theoretical right to do so, there could be real popular resentment. This is strong, but not conclusive, evidence for the proposition that devolution will lead to a federalisation of the UK; the proposition is supported by the fact that the existing electoral arrangements at Westminster lead to constitutional anomalies, the natural resolution of which is full federalism. At present, of the main political parties only the Liberal Democrats are openly supportive of such a resolution; the Labour Party strongly rejects it. However, in an article in the Guardian Lord Hope is quoted as saying that the devolution cases that have recently come up for consideration by the Privy Council reveal:
...our nervous and halting progress towards a kind of federalism, with a nascent constitutional court.