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Alan Page: Two Parliaments, Two Elections ...

What might happen to the Union in the event of a no vote in the referendum?  I was asked to address the legal process of constitutional change. Let me say straight away that from a legal or constitutional point of view there is nothing inherently difficult about changing the devolution settlement. It is simply a matter of amending the Scotland Act 1998, which defines the powers of the Scottish Parliament. It has been done before, most recently by the Scotland Act 2012, and given the necessary political agreement it could be done again - indeed we would expect it to be done if Scotland votes no in September.  The difficulty will lie rather in securing the agreement of two Parliaments whose compositions may well change over the course of the next two years.

Let me explain:

Two Parliaments because although strictly speaking the amendment of Scotland Act is a matter for the UK Parliament and the UK Parliament alone, constitutional convention  - an informal rule of political behaviour - dictates that the Scottish Parliament’s powers should not be amended without the Parliament’s consent.

On the last occasion the Scotland Act was amended - by the Scotland Act 2012 - there was in fact some uncertainty over whether this convention would be observed.  What happened was that the Scottish Parliament agreed to the consideration of the Scotland Bill by Westminster in March 2011, two months before the Scottish Parliament elections in May of that year, but held over the question of its final consent until the UK Government and Parliament had had an opportunity to consider amendments proposed by a committee which had examined the Bill at Holyrood.  What the Scottish Parliament said, in other words, was ‘you go ahead and legislate and we’ll make up our minds once you’ve done that; what we’re not going to do at this stage is simply write you a blank cheque’. Nor I think would any disinterested observer have expected the Scottish Parliament to do otherwise. It made sense to wait for the final version of the legislation before coming to a decision on the question of consent.

Now had the SNP not won an outright victory at the Scottish Parliament elections two months later the likelihood is that the Scotland Bill would have been enacted substantially as introduced - with the Scottish Parliament’s consent. The fact that the SNP won an outright victory meant however that they were able to threaten to withhold the Parliament’s consent unless it was amended to produce a ‘Bill that was worthy of the name’ – that name of course being Scotland.  

In that ambition the SNP government largely failed –they got some of what they wanted but not all of what they wanted and they stopped some other things happening to which they were opposed – but what is most interesting about that episode from a constitutional lawyer’s perspective is that the UK government didn’t just go ahead and legislate, as it would have been perfectly entitled to do as a matter of strict constitutional law. Instead the talking continued until eventually an agreement was reached and the Scottish Parliament’s consent secured. If the settlement is to be amended therefore following a no vote, it can only be amended in my view with the Scottish Parliament’s consent.  Any other course in unthinkable.

So we’re talking about a legislative process or a process of constitutional amendment that will extend across two Parliaments. That is by its nature difficult - certainly more difficult than a process that is confined to one Parliament - but it is made more difficult still by the fact that the composition of those Parliaments may well change over the course of the next two years – because the referendum this September will be followed by a UK general election in May 2015, which will followed by Scottish Parliament elections in May 2016.

Harold Wilson once said ‘a week is a long time in politics’. A year, on the other hand, can seem like no time at all, especially when it comes to constitutional change.

I wouldn't expect anything to happen after September, at which point we will be only seven months from a UK general election. Even if the will was there to do something, and there was agreement about what should be done, the parliamentary timetable would be against it.

Nor would I expect anything to happen immediately after May 2015. For one thing Scotland is unlikely to be top of the new UK government’s list of priorities. For another there will be a reluctance to be dragged back into an open disagreement with what will still be an SNP government about the sufficiency of the unionist response to the outcome of the referendum - about whether a new Scotland Bill is any more worthy of the name than its predecessor - in the run up to the May 2016 Scottish Parliament election.

On the other hand, to simply do nothing until the May 2016 election is over could hardly be said to represent a fitting response to the referendum result. It would also be to risk losing the 2016 election. Rather than doing nothing therefore I would expect the search to be on for some means of arriving at an agreed basis for the revision of the devolution settlement - in advance of amending legislation being introduced.  ‘Crowd sourcing’ is a very fashionable notion among constitutional lawyers nowadays. A more likely possibility would be another constitutional convention - the latest in an increasingly long line that have wrestled with the question of the relationship between Scotland and the rest of the United Kingdom over the last 70 years.

Alan Page is Professor of Public Law at the University of Dundee.  This post first appeared on the Future of UK and Scotland website.

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