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Mike Gordon: The Permanence of Devolution: Parliamentary Sovereignty and Referendum Requirements

On 18th September 2015, the anniversary of the referendum on Scottish Independence, David Cameron announced that the UK Government plans to amend and strengthen the Scotland Bill currently progressing through the UK Parliament, to make ‘crystal clear’ that ‘Scottish devolution is woven into the very fabric of our United Kingdom’.  This amendment would be designed to ensure ‘there is absolutely no doubt: Holyrood is here to stay’.  It was widely reported that the amended Scotland Bill would make the permanence of the Scottish Parliament and Government guaranteed by a referendum requirement – the Scottish institutions would, in this sense, only be removable with the approval of the people of Scotland at a referendum on the issue. 

The initial iteration of the Scotland Bill, drafted in light of the recommendations of the Smith Commission, had of course already made provision as to the permanence of the Scottish Parliament and Government: clause 1, as originally drafted, would have amended section 1 of the Scotland Act 1998, inserting a new sub-section 1A establishing that ‘[a] Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements’, and section 44 of the Scotland Act 1998 would have been similarly amended with respect to the Scottish Government. 

Yet the possibility of the introduction of a statutory referendum requirement in this context represents a further interesting development in relation to an already interesting constitutional provision (or indeed, interesting constitutional provisions, since most discussion of the Scotland Bill’s ‘permanence clause’ has been accompanied by discussion of its clause 2, recognising the normal operation of the Sewel convention).

Perhaps the most obvious initial issue raised is whether it is even constitutionally possible for the UK Parliament to legislate to introduce a referendum guarantee in relation to the permanence of the Scottish institutions – or indeed, any matter at all.  This post briefly explores this issue, to provide context in which the details of the UK Government’s proposed amendment can then be assessed.  In this way, we can see whether the reality of these proposals matches the rhetoric of their announcement, and whether the potential to give legislative effect to this commitment has been fully exploited. 

Can the UK Parliament Create Statutory Referendum Requirements? 

Whether it is possible in principle to enact an Act of Parliament making the existence of the Scottish institutions permanent, removable only if approved at a referendum of the people of Scotland, depends on how we understand the scope and nature of the power of the UK’s legislature.  The classic account of legislative sovereignty – authoritatively captured in the work of Dicey – would suggest that the legally unlimited law-making power possessed by the UK Parliament cannot be used to ‘bind its successors’.  On this approach, each Parliament, over time, will be entitled to an equivalent (and unlimited) legislative authority, and so each Parliament will be entitled to exercise its present power free of any legal limitations purportedly imposed by its predecessors.  And if the Diceyan orthodoxy is understood still to provide an accurate account of the sovereignty of the UK Parliament, we might be led to conclude that any legislative attempt to establish the permanence of the Scottish institutions – whether absolutely, or made subject to a referendum requirement – would be legally futile. 

Yet an alternative account of the meaning and implications of parliamentary sovereignty is available.  I have argued elsewhere that the ‘manner and form’ theory of legally unlimited legislative power – developed in the work of Jennings, among others – provides an understanding of parliamentary sovereignty which is conceptually coherent, normatively attractive, and most significantly, offers the best explanation of developments in practice in the contemporary UK constitution.  Whether seeking to understand the constitutional reconciliation achieved between parliamentary sovereignty and the supremacy of EU law, the remarkable decision of the House of Lords in Jackson v Attorney General [2005] UKHL 56, or the enactment and effects of the European Union Act 2011, a clear pattern of constitutional activity emerges – and this pattern suggests that the idea of legally unlimited law-making power should be understood to permit, rather than to prohibit, the creation of legislation which is legally effective in its attempts to alter future legislative process (or the ‘manner and form’ for the enactment of statutes). 

This offers a way to invest the Scotland Bill’s permanence clause with real bite.  On any understanding of parliamentary sovereignty – manner and form, or Diceyan – the original language of clause 1, recognising the permanence of the Scottish institutions, is of symbolic constitutional and political significance, rather than capable of establishing any definitive legal barrier to future legislative action.  Yet when the contemporary force of the manner and form understanding of parliamentary sovereignty is appreciated, we see that making the permanence of the Scottish institutions removable only once a further, and democratic, procedural condition has been satisfied, would be a valid exercise of the (still legally unlimited) law-making power of the UK Parliament.  For in such circumstances, Parliament would not be ‘binding its successors’, in the sense of removing options absolutely from the possibilities open to being pursued through future statutory action, but exercising its legislative power to change the way – the ‘manner and form’ – in which certain future legislative possibilities would need to be pursued. 

On a ‘manner and form’ account of parliamentary sovereignty, then, we can reach an alternative conclusion as to the legal efficacy of amending the Scotland Bill so as to incorporate some kind of referendum guarantee.  If the permanence of the Scottish institutions were to be made subject in statute to a referendum requirement, that permanence could be legally effective, with the Scottish Parliament and/or Government removable only if approved by the Scottish electorate.  That this possibility should be understood to exist as a matter of constitutional principle provides important context in which to explore the actual amendment proposed by the UK Government – for as we shall see, the detail of the proposal falls some way short of exploiting the full potential of the UK Parliament’s legislative authority. 

The UK Government’s Proposed Amendment of the Scotland Bill 

The text of the Government’s proposed amendment can be found in a letter from the Secretary of State for Scotland to the Convenor of the Devolution (Further Powers) Committee of the Scottish Parliament.  A new clause 63A would be inserted in Part 2A of the Scotland Act 1998, to the following effect: 

63A Permanence of the Scottish Parliament and Scottish Government 

(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.

(2) 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.

(3) In view of that commitment, a Bill to abolish the Scottish Parliament or the Scottish Government is not to be brought forward by any Minister of the Crown except on the basis of a decision of the people of Scotland voting in a referendum. 

The referendum requirement is found in sub-section (3), and seeks to place a duty on Ministers not to bring forward legislation in the UK Parliament abolishing either of the Scottish institutions unless to give effect to a decision of the Scottish people in a referendum.  This falls short of incorporating a referendum guarantee into the legislative process itself, as a manner and form understanding of the doctrine of parliamentary sovereignty suggests would have been possible.  A comparison may to some extent be drawn with section 1 of the Northern Ireland Act 1998, which provides for Northern Ireland to remain in the UK unless a majority vote at a referendum of the people of Northern Ireland indicates the contrary.  In sub-section (2), the Northern Act 1998 also uses the device of a duty on Ministers, in this case, to bring forward proposals to the UK Parliament to give effect to a referendum result which indicated the will of the people of Northern Ireland was to leave the UK. 

Yet the comparison with the proposed amendment of the Scotland Bill is imperfect, for in the Northern Ireland Act 1998 the duty on Ministers is simply a device to give effect to the result of a referendum, the legal effect of which is directly, and separately, stated in section 1(1) of the statute.  In clause 63A of the Scotland Bill, in contrast, the duty on Ministers is all that there is – no independent provision is made as to the legal status of a referendum on this topic, or the legal consequences which such a referendum may have (other than the narrow legal consequence of permitting a Minister to bring forward legislation to abolish the Scottish institutions). 

This proposed amendment is clearly not, then, aimed at incorporating a referendum requirement into the future legislative process, as the UK Parliament has much more clearly done in relation to the European Union Act 2011.  By sections 2, 3 and 6 of the EU Act – which, in very broad terms, make the transfer of specified powers or competences from the UK to the EU subject to a referendum requirement – the Act of Parliament approving the relevant changes is itself made subject to a ‘referendum condition’.  Here, the approving Act is the mechanism by which a referendum is guaranteed – it will not authorise the lawful ratification of treaties or approval of decisions by the UK Government unless approved at a referendum.  The mechanism of a duty on Ministers in the Scotland Bill appears rather weak in contrast. 

That this is a relatively weak mechanism by which to strengthen the Scotland Bill, and guarantee a referendum before any abolition of the Scottish Parliament or Government, is further evident when it is appreciated that the duty on Ministers will be essentially impossible to enforce.  The strong prohibition on the questioning of proceedings in the UK Parliament in any court, contained in Article 9 of the Bill of Rights 1689, (to which the Supreme Court showed considerable respect in the recent case of R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3) would surely preclude any legal challenge in the (highly unlikely) event that such a duty were to be breached. 

Perhaps, however, the fact that it is unimaginable that this duty would be breached by a UK Minister suggests that its legal enforceability is irrelevant – instead, we should focus on the political principles and pragmatism which would operate to ensure that such a statutory guarantee could not be contravened, without prompting an end to the union as we know it.  Indeed, the UK Government has again, in the letter introducing these proposals, made clear that the permanence of the Scottish institutions is beyond any doubt, and that bringing forward legislation to abolish either the Scottish Parliament or Government ‘has never been, and never will be, envisaged’

That this is the case, however, makes the selection of a relatively weak statutory mechanism somewhat perplexing, especially when measured against the rhetoric of David Cameron’s announcement of this proposed amendment, and the fact that the primary purpose of this provision is to make a statement about the UK Parliament and Government’s commitment to an enduring union.  And when accompanied by other changes in the substance of the (now) proposed clause 63A – the removal of the superfluous language that the permanence of the Scottish institutions ‘is recognised’ is purchased at the cost of a new sub-section making it clear that this provision is to ‘signify a commitment’, diluting the superficial effect of such claims even further than in the original text of clause 1 – and the very fact that the permanence clause would become buried in a new section 63A of the Scotland Act 1998, rather than front and centre in an amended section 1, the Government’s amendments will be unlikely to persuade many who already doubted whether the spirit of the Smith Commission’s proposals had been satisfied by the Scotland Bill. 

Where Does This Leave Us? 

When considered against the backdrop of what the Prime Minister seemed to be offering, and what the UK Parliament has the legislative authority to do, we might conclude that the proposed amendment of the Scotland Bill is a missed opportunity (if it proceeds in this form).  While the permanence of these institutions, even aside from legislative guarantees from the Westminster Parliament, can hardly be thought to be in doubt, that such commitments could have been more explicitly – and crucially, as a result of the use of referendum guarantees, democratically – embedded into the architecture of the UK’s constitutional law might have been seen to be reflective of the political practice and principles now underpinning the union (and in a way which is entirely compatible with the fundamental principle of parliamentary sovereignty, an argument I develop further in a recent paper). 

This would have been a significant step by the UK Parliament, going beyond the use of mere statutory rhetoric, in giving a clear and concrete foundation for the devolved institutions.  Yet the proposed amendment put forward by the Government is underwhelming, and avoids any attempt to incorporate a referendum guarantee into the legislative process itself, with the result that the force of the commitment it purports to effect is diminished. 

Perhaps the reluctance to do so hinges on an unwillingness to consider similarly incorporating the Sewel convention – the ‘normal’ operation of which ‘is recognised’ in the Scotland Bill – into the formal legislative process; it is not difficult to imagine that calls to do so would have intensified, especially on the slippery slope of devolution, had the principle of altering the law-making process in this context been conceded.  Or, similarly, perhaps a stronger statement providing a legal guarantee as to a referendum on abolition of the Scottish institutions would have created space for further argument about a standing provision as to a referendum on independence, a request to which the UK Government will clearly not wish to accede. 

Nevertheless, the most recent amendments to the Scotland Bill may ultimately be a solution that pleases no-one – making provision about a referendum in statute, but not making provision about that referendum in statute, while failing to offer something which has the appearance of the strong statutory commitment which might have been created.  The UK Parliament’s legislative authority would have allowed a bolder strengthening to have been attempted, and in going down the path of statutory referendum requirements, the Government seems to have underdelivered on its rhetoric in failing fully to exploit this power. 

Dr Mike Gordon is a lecturer in law at the University of Liverpool.

* I’m very grateful to Aileen McHarg for help in locating the text of the Government’s proposed amendment.

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