Unfinished Business: The Scotland Act 1998
| DOI | http://doi.org/10.1111/1468-2230.00203 |
| Published date | 01 March 1999 |
| Author | Noreen Burrows |
| Date | 01 March 1999 |
LEGISLATION
Unfinished Business: The Scotland Act 1998
Noreen Burrows*
The Scotland Act 1998, which received the Royal Assent on 19 November 1998, is
one of a series of Acts whose aim is to modernise the United Kingdom (UK)
constitution.1In Scotland, Northern Ireland and Wales, regional parliaments or
assemblies are to be established with the goal of decentralising power. Devolution
of power to the ‘regions’ of the UK is not symmetrical. The Scottish settlement
differs in fundamental respects from the Northern Irish or Welsh settlements and
they in turn differ. Asymmetry in our constitutional order should not be seen as a
weakness in itself.2In many ways the constitutional settlements reflect the
aspirations and needs of the people in the different regions of the UK. Aspirations
and needs change. John Smith called the devolution project ‘unfinished business’.
This is how the Scotland Act should be viewed. It is not the final word but it is the
first step in the creation of a new constitutional settlement for Scotland and the UK.
Many issues remain to be resolved such as the relationship between the devolved
governments and parliaments and existing UK and European institutions. These
will be resolved by the development of new constitutional or political conventions
which in turn will require a fundamental review of our constitutional theory.
Devolution is not a local matter. It has implications for the entire UK constitutional
settlement.
This article examines the main provisions of the Scotland Act in the context of
the debates taking place in Scotland about devolution and the creation of the new
Scottish Parliament. The Scottish Parliament is the visible symbol of constitutional
change in Scotland and it will be the focus for change in the future.3The new
Parliament is not a resumption of the old Scottish Parliament. It is a creation of the
UK Parliament and as such is subordinate to it. The old Scottish Parliament was the
parliament of an independent nation; the new Parliament is the parliament of a
region within a larger nation state. As such it is comparable to the parliaments of
the regional autonomies of Spain or the German Lander with the major difference
that these parliaments operate in a constitutional framework that recognises the
legal personality of the region and guarantees the constitutional protection of the
regional governments. In the UK new regional governments and institutions do not
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 241
* School of Law, University of Glasgow.
I am grateful to Tony Prosser for his comments on an earlier draft of this article.
1The Herald newspaper kept some statistics on the passage of the Act. It reported that ‘it took
Parliament 191 hours and 43 minutes of debate during 32 days at Westminster, 15 in the House of
Commons and 17 in the House of Lords. More than one million words were spoken and 2025
amendments were tabled, 670 from the Government’. The Herald 18 November 1998.
2 M. Keating, ‘What’s wrong with asymmetrical government?’ in H. Elcock and M. Keating (eds),
Remaking the Union: Devolution and British Politics in the 1990s (London: Frank Cass, 1998).
3 For the last thirty years the focus of constitutional debate in Scotland has been on the creation of and
need for a Parliament. For a collection of materials on this debate see L. Paterson, A Diverse Assembly:
The Debate on a Scottish Parliament (Edinburgh: EUP, 1998).
have this constitutional protection as yet but if they are successful in operating
within a devolved framework it is at least arguable that the logic of devolution
requires the creation of a constitutional order which guarantees their autonomy.
Background
Both the Scottish and English parliaments were abolished by the Acts of Union of
1707. A new parliament, the Parliament of Great Britain, was established merging
the two parliaments. The Acts of Union served to protect some aspects of Scottish
life and culture, most notably its legal system and the Church of Scotland as the
established church in Scotland.4However it has often been repeated that Scotland
is one of the few independent legal orders lacking a legislature. Scottish legislation,
in time, came to have its own procedures in the Westminster Parliament but these
were inadequate mechanisms for securing popular support and accountability for
government policy in Scotland. At the same time, the powers of the Scottish Office
were gradually increased, so much so that complaints were levelled that the
Scottish Office was free to act like the colonial governing power of some far-flung
colony. The Scottish Office was unaccountable to the Scottish people and ignored
by Westminster. In Scotland, there was a real democratic deficit.
The Royal Commission on the Constitution (1969–1973) had recommended that
legislative competence be devolved to Scotland.5The Labour Government enacted
the Scotland Act 1978. That Act was to devolve certain specified areas to a
Scottish Parliament, which was to be elected following the result of a referendum,
provided that the referendum achieved a positive vote of 40 per cent of the
electorate in favour of devolution. The referendum target was not achieved with
only 32.5 per cent of the electorate voting in favour of devolution. The 1978
Scotland Act was, therefore, repealed. In May 1979 the election of a Conservative
government opposed to devolution meant that devolution was no longer on the
official political agenda.
Within Scotland, however, devolution remained a live issue particularly in the
light of dwindling political support for the Conservatives culminating in the May
1997 election when no Conservatives were returned from Scottish seats.6The
Campaign for a Scottish Parliament continued its work and established a Com-
mittee, which, in July 1988, recommended the formation of a Scottish Constitu-
tional Convention ‘to make plans for the future governance of Scotland’.7In early
1989, a cross party group was established to discuss ways of moving the project
forward. The Conservatives refused to participate and the Scottish Nationalist
4 For an analysis of the Acts of Union and a summary of some of the literature on them see Michael F.
Addo and Veronica M. Smith, ‘The relevance of historical fact to certain arguments relating to the
legal significance of the Acts of Union’ (1998) Juridical Review 37.
5Report of the Royal Commission on the Constitution 1969–73, Cmnd 5460 (1973). For a succinct
history of attempts to change Scottish constitutional arrangements prior to the establishment of the
Royal Commission and more generally on Scottish politics see A. Brown, D. McCrone and L. Paterson,
Politics and Society in Scotland (Basingstoke: Macmillan, 2nd ed, 1998).
6 Paterson identifies four themes as the dominant concerns of the debate in Scotland: good and effective
government, nationalism, the importance of community and civil society in Scotland, and negotiated
autonomy. See Paterson in n 3 above.
7 The background to the work of the Scottish Constitutional Convention can be found in Scotland’s
Parliament: Scotland’s Right, the report presented to the Scottish people by the Convention
(Edinburgh, 1995). Information about the Scottish Constitutional Convention can be found on its web
site http://www.almac.co.uk/business-park/scc/backg.htm. The text of the Claim of Right is in the 1995
report and on the web site.
The Modern Law Review [Vol. 62
242 ßThe Modern Law Review Limited 1999
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