Tuesday, November 3, 2015

The amendment to the Scotland Bill still doesn't guarantee the Scottish Parliament's permanence

I know I've mentioned this a few times before, so apologies for repeating myself.  But a couple of years ago I took part in a podcast with Andrew Tickell, and I was very surprised when he took issue with my point that it would be perfectly possible to entrench a devolved Scottish Parliament as permanent, and that it isn't strictly true to say that no Westminster government can bind its successors. The example I gave was that the independence of Australia was legislated for by Westminster, and that there's no way Westminster can now abolish Australian independence simply by repealing that law.  Andrew insisted that was flatly wrong - in theory, Westminster can repeal Australian independence because the principle of parliamentary sovereignty means that it can do whatever it likes, no matter how absurd.

Having thought about it since, I think that looks at the issue the wrong way round.  If Westminster tried to repeal the Australia Act 1986, and if anyone was foolish enough to take that seriously, the issue would be decided by the Australian courts, not the British ones.  Australian judges would undoubtedly take the view that the supremacy of the British parliament ceased to have effect in Australia from the moment a law was passed stating that : "No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth..."  Australia is now subject to Australian constitutional law only.

A similar principle might be said to apply to Scotland in reverse, because the authority of the Westminster parliament ultimately derives from an Act of the pre-union Scottish Parliament, namely the Union with England Act 1707.  I believe I'm correct in saying that Scottish judges have previously indicated that some parts of that Act are more entrenched than others, and that the Scottish courts wouldn't necessarily stand idly by if Westminster unilaterally ripped up some of its key provisions.

So there does appear to be legislative language which is strong enough to trump the 'absolute sovereignty of parliament' principle.  The million dollar question is whether the beefed-up 'permanence' clause in the Scotland Bill is sufficiently strong to have that effect.  This is how it now reads -

PERMANENCE OF THE SCOTTISH PARLIAMENT AND SCOTTISH GOVERNMENT

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 it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.

To be fair, I think this does take us a little further forward, because it's now the case that Westminster would definitely have to repeal that Clause if it ever wanted to abolish the Scottish Parliament without a referendum. (The previous wording was the suspiciously tortured "it is recognised that the Scottish Parliament is a permanent part...", which may not even have had any legal effect at all. It was more like commentary than law - "recognised" by who exactly?) So at least it will now be the law of the land that the Scottish Parliament cannot be abolished except by popular vote. The snag is that Westminster will still be free to change that law whenever it likes, and probably won't have to break much of a sweat to do it. I suppose the language is now strong enough that if any attempt at repeal is made, a legal challenge might be launched on the basis that Westminster is attempting to use legislative powers that it has already terminated with the words "are not to be abolished". But that would be a very optimistic challenge, with presumably only an outside chance of success.

The wording of the clause still looks very peculiar to me, and it's hard not to conclude that the Tories' real objective is to look as if they're making the Scottish Parliament permanent, without giving that principle any meaningful effect in law. There are a lot of seemingly redundant words in there ("signify the commitment of", "in view of that commitment", "it is declared that"), and I would be interested to hear from legal experts what message is likely to be conveyed to the courts by those words.  If the government are acting in good faith, it's very hard to understand why they've rejected the Australian-style wording of "the power of the United Kingdom parliament to abolish the Scottish Parliament without consent is terminated".

There's a reason why this is important.  Just about the only part of The Vow that wasn't couched in incredibly vague language was the promise of permanence.  So if the Scottish Parliament's permanence isn't being guaranteed, The Vow isn't being delivered in full.  Simple as that.

27 comments:

  1. The only way to truly ensure Scotland's sovereignty is for Scots themselves to assert it.

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  2. I think it comes down to the sinews of power, not to legalities. The UK government could abolish Australian independence. It just would have no way to enforce it.

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    1. "The UK government could abolish Australian independence."

      I'm not sure I even understand what that means. Unless the relevant courts recognise a decision to reverse Australian independence, it's illegitimate.

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    2. I mean that they could pass a bill in the House of Commons to revoke the 1986 act. But so what? It wouldn't change the fact that Australia is de facto independent with its own fiscal and revenue system, army, etc. So to make dependence meaningful, to bind Australia once more to the UK and assert British authority and sovereignty, we would have to invade and conquer the country, take over its systems.

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    3. Well, any country could annex any other country if it was militarily strong enough. I'm not sure what that tells us in concrete legal terms. Whether a British attempt to extend its laws over Australia is valid would be determined by the Australian courts, not by abstract British constitutional theory.

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  3. "the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law" -Lord President of the Court of Session, in the case of MacCormick v Lord Advocate in 1953.

    I'm not a lawyer so I'm not sure what the real significance of that is.

    The main problems I see with expecting Scottish courts to block a repeal of anything is that they'd probably be overruled by the Supreme Court of the UK and I don't think there exists any process for courts in the UK to overturn Acts of the Westminster Parliament.

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    1. Well, they were asked by the Countryside Alliance to declare the Parliament Act 1949 invalid, on the basis that the House of Commons exceeded its powers in passing it. They refused to do so, but I didn't get the impression that they dismissed the arguments put forward as inherently ludicrous.

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  4. The UK government could abolish the Scottish parliament, and all it would have to do is to cancel the block grant. They hold the purse strings, but they don't hold the purse strings of Australia. It has its own revenue, its own tax collection system, its own central bank, its own military. In theory Britain could abolish Australian independence but it would have to send the armed forces in to gain control of the country.

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    1. Which in a sense emphasises the point that it is perfectly possible to make the permanence of the Scottish Parliament meaningful in both a legal and practical sense, but that the UK government is declining to take the necessary steps.

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  5. We can't be independent until we have our own version of HMRC and PAYE in Scotland, until we can set our own taxes and gather them directly and not get them back via the Treasury. We are like somebody who is an adult, and who works, and has a decent wage, but their pay is collected by somebody else and held in a bank account which they control and who gets pocket money back for their day to day expenses, whilst the major household items are paid for by the account holder. Some gypsies captured homeless people, gave them a place to live, and made them work for them in return for a roof over their heads and a fraction of their earnings, and prevented them from leaving the compound. It was called slavery. And that is what we are.

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    1. And that is what can be changed if the will is there.

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    2. Glasgow Working ClassNovember 3, 2015 at 11:46 PM

      It has all been a waste of taxpayers money and just a talking shop as is the EU Parliament. Westminster excluding the Lords and local government is sufficient and served us all well. Working class people serving local communties are being cut and money has been diverted to talking shops. Abolish the EU and the devolved winger's

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    3. If you eat your cereal like a good little troll, your Unionist overlords might let you have a biscuit...

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  6. I have an unabashedly pragmatic approach to this issue:

    If the UK government refuses to grant Holyrood permanence then it's a gross betrayal of their promises.

    If the UK government grants Holyrood permanence then it's an empty gesture that shows we need to take our destiny in our own hands with independence.

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  7. It is a chicken and egg situation.
    Does democracy determine law or the other way round?
    At the end of the day,it comes down to convincing the majority of people in your country to accept principles by which they live.
    Whether that is achievable by force of law (whose law?) or accepted democratic agreement is debatable and is at the heart of Scotland's current constitutional arrangements.

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  8. With my paranoid hat on - the one that assumes the UK government will never knowingly do Scotland a favour - I read the permanence clause in a more sinister light. We have seen that Spain insists that Catalonia belongs to it and so cannot have independence, due to the Spanish constitution. By making it explicit that Scotland is a permenent part of the UK it could be argued that Westminster is trying to do the same with us.

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  9. The Scottish Parliament's permanence can never be guaranteed as long as we remain in the United Kingdom. But this is what the people voted for. They didn't want independence and so sovereignty remains at Westminster.

    However, short of a war, I can't see any reason why it would be dissolved / suspended - unless the people of Scotland get fed up with it.

    Aldo

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    1. "The Scottish Parliament's permanence can never be guaranteed as long as we remain in the United Kingdom. But this is what the people voted for."

      Even by your standards, Aldo, that's complete rubbish. People voted (narrowly) for a "Vow" that explicitly stated that the Scottish Parliament was permanent. Opinions differ on what it would take to make the Scottish Parliament immune to abolition form Westminster, but even if that meant ripping up the whole British constitutional framework and replacing it with a written constitution limiting the rights of parliament, that's what should have happened. A Vow is a Vow.

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    2. The Scottish people voted for a vow? That's news to me. I thought the question was "should Scotland be an independent country?"

      The best you could do is have a written constitution like the United States. But even the US can change its constitution (it takes a congressional majority of 2/3) and, presumably, the British constitution could be altered in a similar way. This means that the Scottish Parliament can never be technically permanent, as long as a majority or supermajority of Westminster MPs can vote for it to be suspended / abolished.

      Would independence make the Scottish parliament "permanent"? Perhaps. Although a resurgence of British unionism or greater European integration could threaten the existence of the parliament. War and natural disaster also - although these are exceedingly unlikely (I hope!)

      Nothing is permanent.

      Aldo

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    3. Sigh. No, Aldo, the US cannot abolish its own states, not even by a super-majority. That's not how it works. The states are sovereign and exist as of right.

      I'll buy you a book to explain it all, full of pictures and diagrams.

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    4. The United States is a Federation though. Britain is a unitary state. It's a different system we operate here. If the government is supreme it cannot cede power, not in any meaningful sense - because it can just take it back again.

      And, even in the US, a state could officially cease to exist if the state in question, the federal government and any third parties were all in agreement that that is what should happen. There goes your permanency.

      It is unlikely the UK government would ever revoke the Scottish parliament. Since there is a general perception at the moment, stoked up by the nats, that anyone south of the border is an evil, top hatted, moustache twirling, capitalist, tory voting savilist, then I don't see it going down too well.

      The Scottish parliament will only ever be abolished in a dire international crisis or if Scots themselves vote for it.

      Now, can we stop with the whitabootery and discuss the new tax raising and welfare powers that are set to be transferred - will the SNP help "ra poor"?

      Aldo

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  10. 'a legal challenge might be launched'

    I refer you to Lord President Cooper's judgement in MacCormick v Lord Advocate: 'it is of little avail to ask whether the Parliament of Great Britain ‘can’ do this thing or that, without going on to inquire who can stop them if they do'. The essence of Westminster's sovereignty is the absence of any court entitled to rule on its actions and empowered to order a reversal or change of any action held by that court to be unlawful.

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    1. The UK supreme court, House of Lords, ECHR, international criminal court and the United Nations can all challenge the UK government's decisions and actions.

      However, we are a nation. We voted to remain so. And the government - the one true sovereign government - must be allowed to do its job i.e. govern.

      Aldo

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    2. Scotland is a nation. Britain is a mess.

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    3. Britain is a nation, you will find - and one of the richer nations on the planet.

      Scotland is called a "country", a "nation", a "kingdom" - but in reality is a region of Britain.

      Aldo

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    4. Nah, Britain's an omnishambles. It's a chumocracy, run by and for the wealthy.

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  11. 'Permanent part' of ukok 'constitutional arrangements'. Would love to know what that means given that ukok has no written constitution. Also the part where it says they can't revoke the Scottish Parliament without a referendum. It does not state what kind of referendum and in what circumstances. For instance, if the Scottish people decide to hold a referendum for independence, without the go ahead of the English parliament,
    (for that is what it almost is now) would that then mean they could revoke our parliament. Sounds daft I know but they are very very sneaky.

    I don't like this permanence re part of ukok, sounds very ominious however it is meant. This all looks like another con, buyer beware at all times.

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