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Alan Page: Scotland's Constitution: Past, Present - and Future?

The debate about Scotland’s constitutional future promises to be a debate about more powers for the Scottish Parliament, be it in the form of an independent Scotland, ‘independence-lite’, ‘devo-max’ or however else we want to describe our vision of the promised land. A debate about what should be decided in Edinburgh rather than London, forgetting for the moment at least how much is decided in Brussels, Luxembourg and Strasbourg. 

There is another side of that debate which ought not to be lost sight of, but of which remarkably little has been heard since devolution. And that is the control and accountability of government. It is as if a Scottish Parliament having been achieved, constitutional lawyers can fade back into well-deserved obscurity, only to be called back to arms when the debate erupts over who does or does not have the power to call a referendum on independence.

The question of the control and accountability of government however is a vital one for constitutional lawyers. For some it is the whole story. For others it is tempered by knowledge that government has the potential to be a force for tremendous good as well as a force for ill. The Scottish Office of Tom Johnston was an undoubted force for good even if we might regret the scars left on the landscape by an earlier dash for ‘green’ energy. But whichever perspective we approach it from, it is a crucial issue and not just for constitutional lawyers but for all of us who live in Scotland.

It is also a question that runs through the whole of Scotland’s constitutional history from the earliest days through to the modern era even if the answers have seldom been satisfactory even by the uncertain constitutional standards of an earlier age.  

It was a question that was raised in the 1920s when the Times could write of ‘that great Pooh Bah, the Secretary of State for Scotland’ – this at a time when the Secretary of State wielded a fraction of the power that was to be wielded by Willie Ross or Michael Forsyth fifty or sixty years later.

It was a question that was raised in the 1930s when ‘administrative devolution’ and the relocation of the Scottish Office to Edinburgh was the Unionist answer to demands for Scottish home rule.

It was a question that was raised by the Kilbrandon Commission, which recorded it as a complaint that there was a great deal of specifically Scottish administration going on in Scotland over which the Scottish people had no direct influence. 

And it was question that was raised with increasing frequency during the 1980s when talk of the ‘democratic deficit’ became commonplace. For the Claim of Right, which still merits reading as an indictment of the government of the United Kingdom and of Scotland as it stood at the time, the crucial questions were power and consent – making power accountable and setting limits to what could be done without general consent.

But since devolution it is a question that we have largely ceased to ask, which some might interpret as a sign that all is well with our constitution but just because we have stopped asking the question doesn’t mean the issue has gone away.

We do have our own Parliament, which remains the single great achievement of devolution, but twelve years after devolution there is no mistaking the extent to which that Parliament falls short of the lofty ambitions signalled in its founding principles.

We have seen the courts acquire a powerful position in the Scottish constitution. The controversy that erupted over the Cadder and Nat Fraser judgments suggests however that we have some way to go before we are fully reconciled to a constitution in which the courts have the final say.

And we have put in place an assortment of commissioners - a so-called ‘fourth branch’ of government - but without any very clear sense of where they fit into our constitutional arrangements.

In short, it is as though we have been largely content to take the Westminster system as it then was and to recreate it with one or two adjustments, forgetting all the criticisms that were made of that system, and to then carry on pretty much as before.

Devolution was not meant to be simply about preventing a recurrence of Mrs Thatcher, although there are times when it still seems like that; for Margaret Thatcher read David Cameron or, more plausibly, George Osborne. It was meant to be a new constitutional beginning. How realistic that was is an issue we can debate – we should debate – but the debate about Scotland’s constitutional future should be a debate not just about powers but about the Scottish constitution – as it has been, as it now, and as it ought to be.

Alan Page, Professor of Public Law, University of Dundee

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