Scotland's Constitution: Law and Practice
| Author | Alan Trench |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00572_1.x |
| Published date | 01 November 2005 |
| Date | 01 November 2005 |
REVIEWS
C. M. G. Himsworth and C. M. O’Neill,Scotland’s Constitution: Law and
Practice,Edinburgh and London: Lexis Nexis UK,2003, xl þ549pp, pbd43.00.
This book is one of the ¢rstcomprehensive treatments of Scotland’s constitution
since devolution. It does a hugely valuable service, by providing a wide-ranging
treatment of how Scotland is now governed in legal and institutional terms.The
contents list is much what one would expect: the authors survey the main topics
of interest starting with a survey of the role of constitutions in the abstract and
progressing through‘the Scottish Constitutiona l Context’ (including the Treaty
of Union with England, and theUK’s membership of the EU).Then they exam-
ine the roles of the UK and Scottish Parliaments, the issue of devolved legislative
competence, the role and relationship of the Scottish Executive andUK Govern-
ment, legislative processes at Westminster and Holyrood, and government’s par-
liamentary accountability. They conclude by considering the role of the courts
especially in public law matters. Along the way they cover such important if
neglected topics as the constitutional position of local authorities and the broader
public sector, and the nature of the ¢nancial relationship between the UK and
Scotland. The account is thorough and comprehensive, sur vey ing a wide range
of o⁄cial documents as well as statute, case-law and secondary discussions. It is
also clearly-written and readable, except for some important if detailed discus-
sions which are contained in footnotes rather than the main text. It is largely
a black-letter account, explaining what Scotland’s post-devolution constitution
is rather than seeking to approach it from more theoretical points of view or to
discuss broader issues such as sovereignty.
The book has a number of signi¢cant virtues. One is negative: the authors
avoid the vice to which some post-devolution writing on Scotland (especially
by students of politics) has been prone, of treating devolution as meaning that
Scotland is or should be autonomous. Throughout, they give full credit to the
importance of the UK aspects of Scotland’s position andto the UK-Scotland rela-
tionship. They give a clear account of the role of the courts in determining legal
questions relating to devolution and of such litigation as there has been so far
about Scottish devolution (pp 501^520). Another strength is the grasp of some
of the legal subtleties and complexities of devolution. Particularly laudable are
their discussions of the principles of dividing legislative competence between
Scotlandand the UK by reservingsome matters tothe UK (pp 169 -93), the struc-
ture of executive devolution (pp 244^250) and public bodies working across
the Scottish-English border (pp 286^291) ^ tricky issues which are commonly
misunderstood.
There are alsosome £aws.More discussion of the(Westminster)Parliamentary
aspects of the Sewel convention, by which the UK Parliament continues to
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(6)MLR 1034^1044
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