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Opinion: Christine O'Neill

19 January 15

Aspects of the Smith Commission proposals deserve proper scrutiny by constitutional lawyers as well as politicians, due to their implications for the future status of Westminster legislation

by Christine O'Neill

The Smith Commission proposals on further devolution have had considerable air time since their publication in November. We also expect, by the end of January, draft clauses prepared on behalf of UK Government to illustrate how those proposals would be given legislative effect. Whether and when they find their way into legislation will depend on, among other things, the outcome of the 2015 general election.

Some of the Commission’s proposals face more fundamental obstacles than simply the need for parliamentary support, giving pause for thought for those with a particular interest in constitutional theory.

There is the well-reported but shortly expressed proposal that “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”. I have written elsewhere about the challenges this presents in terms of the accepted understanding of sovereignty of Parliament. Lawyers “get” the point quickly: we know that the British Parliament can make or unmake any law and that it cannot bind its successors. A declaration in an “ordinary” Act of the Westminster Parliament that certain statutory bodies are permanent is (however politically unlikely) subject to repeal by a future Parliament.

One could simply take the view that this proposal – and any implementing legislation – is designed for show: an act of symbolism intended to acknowledge the political reality that the devolution settlement is irreversible, but not of much concern to lawyers. That attitude, which says politicians will be politicians, provokes a number of responses.

First, it is at least worth debating whether it is good legal practice to include in legislation provisions that are merely declaratory. There is a respectable argument that legislation ought to “do” something rather than simply “say” something, and that cluttering up the statute book with declarations, exhortations and aspirations is unhelpful. Support for the Smith proposal seems to speak to a desire for the kind of narrative contained in, for example, the preambles to the United States Constitution and the Treaty of Rome rather than any British legislation.

Secondly, it seems fairly clear that supporters of the proposal – from Gordon Brown and Labour’s pre-referendum commission on devolution, through the Liberal Democrats to the Smith Commission itself – do expect that it would or should have legal effect, notwithstanding Lord Smith’s reported “admission” that there is nothing permanent in UK law. The majority of the parties that participated in the Smith Commission have a commitment to a written constitution (UK or independent Scottish), and there is a strong sense that this proposal reflects a belief that committing constitutional principles to legislative paper is an important and worthy project.

Christine O’Neill is chairman and a partner in the public law & regulatory team at Brodies LLP

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