No, the Scottish Parliament isn’t Sovereign

Today I came across an article published on CommonSpace.scot by a guy called Anthony Barrnett, founder of opendemocracy.net. Entitled ‘Why the EU vote is an English, not British, reckoning’, it discusses the upcoming EU referendum, and the potential implications, with a particular look at the Scottish element.

It seemed like a good read, but before I got too far into it, there was this section:

Scotland has its own sovereign parliament. I emphasise sovereign, The Vow opens by saying that the Scottish Parliament is ‘permanent’. Gordon Brown, who oversaw the formulation of The Vow, was fully aware of the explosive constitutional consequences of this term.

It means that Westminster’s sovereignty no longer extends to Scotland. Now, suppose this sovereign parliament is confronted with the circumstances you describe. I’m not saying they are likely, but if indeed the referendum is as close as the polls currently suggest (not that I believe in them) then it is possible that there will be a vote for Brexit.

As a supporter of Scottish independence, I am all for strengthening the position of our Parliament wherever possible. However, that doesn’t extend into flights of fantasy. To that end, I feel compelled to clarify a few things in response.

On permanence

The formal statutory recognition of the Scottish Parliament as ‘permanent’ was undeniably symbolically important, but in reality it did little to impact the actual constitutional position. In fact, arguably this is precisely why Gordon Brown promised to make this change in the infamous vow; it sounds great rhetorically, without having any substantive practical effect.

The reason for this is pretty straightforward. Despite placing the Sewell Convention ‘on a statutory footing’, the British Parliament still retains ultimate sovereignty. If Westminster were to decide tomorrow that the Scottish Parliament should be abolished, passing an Act to that effect, there is nothing legally that would prevent them from doing so. No Parliament can bind another (or itself) through legislation (following Dicey’s Doctrine of Parliamentary Sovereignty). For this reason, the following clause (taken from the Scotland Act 2016) seems noble, but ultimately without any effective enforcement:

it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum

For some time there was a theory that certain Acts of Parliament have come to be entrenched with such constitutional importance that they have taken on a special status, and that their repeal could potentially be resisted by rebellious judges, should Parliament dare to attempt it. Examples of these include the European Communities Act 1972 (ECA), the Human Rights Act 1998, and the Scotland Act 2016. However, given the political developments over the past 5+ years, (not to mention the referendum that we are in the middle of) it should be clear that this is not the case. For more reading on that particular point, see this article on the UK Constitutional Law site.

Of course, should Westminster seek to abolish the Scottish Parliament, the fallout would likely be astronomical, but that does not mean that they do not hold the legal power to do so. Holyrood could well be permanent, but if so, it is only through the protections of the will of the Scottish people: not the law.

On Sovereignty

Scotland has its own sovereign parliament. I emphasise sovereign.

Given that the Scottish Parliament is not permanent in any legal sense, then it naturally cannot possibly be sovereign. By definition, if another body ultimately has the legal authority to bring your existence to an end, then you do not hold sovereignty.

To illustrate this further, s.29(1) of the Scotland Act 1998 states:

an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament

going on to explain that this includes [the Parliament] having: ‘no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights.’ In other words, it is legally impossible for the Scottish Parliament to bring about any law or action that is incompatible with the European Convention on Human Rights. Note, that this restriction doesn’t apply to the Parliament in Westminster. Why? Because Westminster is sovereign, and Holyrood is not. A sovereign Parliament cannot be legally bound in this way. Whilst Westminster can willingly choose to restrict its sovereignty by entering into international treaties and accepting the corresponding obligations, that does not mean that sovereignty is relinquished, and it does not have the restriction imposed by a third party.

Another grand statement included in the CommonSpace article is this:

It means that Westminster’s sovereignty no longer extends to Scotland.

What a wonderful thought! I am not sure how the author has come to this conclusion, as they don’t expand on this further in the article, but as it stands, it is completely inaccurate.

Again, whilst convention may dictate that the Westminster Parliament will not legislate in areas which fall within the competence of the Scottish Parliament, that does not mean that they are unable to do so. In fact, the whole nature of the Scottish Parliament is based on the granting of powers from Westminster. The only legal authority that the Scottish Ministers have is that derived from the sovereignty of the British Parliament; ‘a creature of statute’.

So whit?

Why does this matter? It matters because if the Scottish Parliament was sovereign, then we would be an independent, sovereign country – exactly what those of us who voted ‘Yes’ in 2014 were fighting for. That simply isn’t the case, and perpetuating disinformation does a disservice to us all. So no Anthony, sadly the Scottish Parliament is not sovereign. Yet.

 

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The Smith Commission Report

Today saw the release of the report from the ‘Smith Commission’, which was set up in the aftermath of the Scottish independence referendum to discuss the devolving of greater powers to Scotland.

This was the result of last minute promises (or ‘the vow’) from the main party leaders in Westminster, in the face of polls that showed a majority of support for Scottish independence.

The vow, and the Commission itself is shrouded in politics and controversy, but I’ve taken a look through the decisions in the report to see for myself what stands out. I’ve tried to take them at face value with my lawyer hat on, rather than look at any of them from an ideological standpoint that supports independence.

Here’s what I’ve found:

The Scottish Parliament

Screen Shot 2014-11-27 at 13.37.37This is a bit of a strange one. Designed to assuage fears that Westminster would dissolve the Scottish Parliament at a whim, it’s nothing more than a symbolic statement. Whilst it’s true that Westminster could theoretically disband the Scottish Parliament (as it is nothing more than a creature of statute), its existence was already guaranteed as much as it could be by constitutional convention. Even with new UK legislation to state the supposed permanence, the doctrine of parliamentary sovereignty dictates that the decisions of one parliament are unable to bind any other – so it doesn’t bring much to the table that wasn’t already there.

Elections

Screen Shot 2014-11-27 at 13.49.06

This is good news, with the parties looking to bring these changes in in time to allow 16 and 17 year olds to vote in the 2016 Scottish Parliamentary elections. Note that whilst this is a great progressive step that corrects some inconsistencies with our approach to the age of consent in Scotland, the same 16 and 17 year olds will not be able to vote in Westminster elections until they reach 18.

Screen Shot 2014-11-27 at 13.48.45

Foreign Policy

Foreign policy remains reserved to Westminster, which isn’t a great shock really. What’s more interesting is the weak approach to the UK’s involvement with the European Union. When a matter relates to Scotland, the Scottish Ministers views should be ‘taken into account’. We all know what that really means.

Screen Shot 2014-11-27 at 13.55.42The BBC

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Interesting, but nothing to write home about. No mention of the license fee, or any other substantive elements of broadcasting in Scotland. Pretty weak, and something that should have really always been the case.

Pensions

Screen Shot 2014-11-27 at 14.00.28

Remain with Westminster.

Benefits

Elements of some benefits payments – such as the creation of new benefits – is being given to Scotland. However, a large number of these remain reserved to Westminster. It’s an area that’s relatively long, and not one I claim to have any great knowledge over, so I’ll defer to others for analysis here.

Minimum Wage

Screen Shot 2014-11-27 at 14.09.02

Stays under the control of Westminster. Can’t have Scotland paying a higher minimum wage than the rest of the UK after all, that would be scandalous. Worth noting that Labour were against giving the Scottish Parliament the power to introduce a living wage. Party of the people, indeed.

Equality Act 2010

Screen Shot 2014-11-27 at 14.11.49

Reserved to Westminster. Whilst it’s important to ensure that Scotland wouldn’t slip below the standards set out in the Equality Act 2010, that seems less of a plausible threat than future Tory governments in London doing the same thing. On balance, I don’t see why this should remain a reserved matter.

Transport

Nothing all that notable here, with the exception of one massive devolution of power to the Scottish Parliament of course:

Screen Shot 2014-11-27 at 14.15.45

Ahem.

Fracking

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A bit of a surprise one, given the economic importance of fracking. The powers relating to this will now lie with the Scottish Government. I suspect we’ll be hearing more about this though. Watch this space.

Misc.

Screen Shot 2014-11-27 at 14.18.58

Good, but… bizarre.

Income Tax

Screen Shot 2014-11-27 at 14.20.33
This one has received a lot of press attention, but it seems to be a case of wilful blindness to what the powers actually entail.

  • Income tax will continue to exist across the UK
  • The Scottish Parliament will have powers to vary the rate of income tax
  • Any income tax received as the result of an adjustment by the Scottish Parliament will go to the Scottish Parliament

BUT, note the point at the end of 78: that any increase in the amount of money collected through income tax will be met by a ‘corresponding adjustment’ to the amount of money that Scotland receives through the UK. That means that changes to the income tax levels won’t have any real effect on the actual amount of money Scotland gets. This is a clever way to give the impression of the Scottish Parliament getting more powers, whilst making sure they are toothless with regards to delivering any change.

Other Tax

Screen Shot 2014-11-27 at 14.25.40

Pretty much all reserved to Westminster, with the exception of Air Passenger Duty. Note that this includes oil and gas revenues. No big shocker there.

Screen Shot 2014-11-27 at 14.26.41

The costs of implementation of a separate system would have to be passed back to Westminster, making it a fairly unattractive power to implement.

There are also some changes to VAT, where Scotland will apparently generate income from the first part of any collection, but again this corresponds to a reduction in the amount received from the UK block grant, so it’s not worth even paying any attention to.

Fuel

Screen Shot 2014-11-27 at 14.28.34

You guessed it!

Summary

I felt pretty good about the results of the Smith Commission when I read the brief reports coming from elsewhere. I dismissed the cynicism I saw from other pro-independence campaigners as inevitable. However, reading through the report for myself is pretty disappointing.

  • No real new powers devolved to the Scottish Parliament
  • A couple of minor victories with regards to 16 and 17 year olds voting in Scottish Parliamentary elections
  • Some symbolic language, which doesn’t give any further legal status to the devolved organs
  • Headline suitable devolutions of certain taxes, which won’t result in any increase in the Scottish Parliament’s budget

The last one is the most galling of all. It means that even if they make use of the powers to modify the rate of income tax, the Scottish Parliament won’t actually receive any more money. Rather, it’s the source of the money that will change, rather than any powers over the level. This is a sham designed to deliver good headlines.

Of course, none of this is binding. Westminster still needs to accept the recommendations, which could be another interesting battle.

You can download the report for yourself here. It’s not too long – only 28 pages. Worth a read for yourself.