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Legislating for Permanence and a Statutory Footing

Document Cited in Related
Vincent
DOI10.3366/elr.2016.0368
Published date01 September 2016
Date01 September 2016
Author
Pages361-367
<p>It must have been a source of great amusement to any member of the Smith Commission versed in the bear traps of the British constitution when fellow commissioners agreed to the wording of their two opening legislative recommendations.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref> How better could one put the cat among the constitutional pigeons than by asserting, first, that “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions” and, secondly, that “[t]he Sewel Convention will be put on a statutory footing”.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref> That would cause a fuss. Government draftspersons would be set the task of squaring the circle of extracting institutional “permanence” from a UK Parliament combining enduring sovereignty and an incapacity to bind its successors and, almost as conceptually tricky, recasting convention as statute; the parliamentarians set to scrutinise the drafts would have a field day;<xref ref-type="fn" rid="fn3"><sup>3</sup></xref> retired judges and law officers would be sure to spring into action;<xref ref-type="fn" rid="fn4"><sup>4</sup></xref> and academics north and south of the border would jump at the opportunity of applying text book theory to the reality of devolutionary politics. And so it proved!</p> SECTION ONE

At least in relation to the “permanence” provisions, the Smith commissioners had little choice. Appointed in the wake of the Prime Minister's Downing Street commitments of 19 September 2014, they had to rearticulate the Unionist parties’ “vow” of 16 September5 as recommendations for new legislation. And the “vow” had affirmed that “[t]he Scottish Parliament is permanent”. In its evidence to the Smith Commission, the SNP Government had urged that the “existence of the Parliament as an institution should be legally entrenched and made permanent, so it could not be abolished without the agreement of the Parliament itself and preferably the people of Scotland in a referendum”.6

The UK Government responded with its own “Draft Scotland Clauses 2015”,7 including:

“A Scottish Parliament is recognised as a permanent part of the United Kingdom's constitutional arrangements”8

and

“A Scottish Government is recognised as a permanent part of the United Kingdom's constitutional arrangements”.9

These were carried forward into the first version of the Scotland Bill10 itself. Following amendments brought forward by the government at House of Commons Report stage,11 however, the two clauses were integrated in a new version which eventually reached the statute book:12

Permanence of the Scottish Parliament and Scottish Government

The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements.

The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

In view of that commitment it...

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