High Court of Justiciary and Court of Session

Devolution at Twenty: Embedding a New Constitutional Paradigm

Published: 3 September 2019
Author: Aileen McHarg

As the Scottish Parliament returns from recess, Aileen McHarg of Durham University analyses the constitutional logic of Scottish devolution. This is a contribution to the series on twenty years of devolution.

A central feature of the devolution scheme established in 1999 is that Holyrood is a legislature of limited legal competence.  In addition to the various policy areas reserved to Westminster, the Scottish Parliament cannot legislate contrary to the European Convention on Human Rights, breach EU law (at least for now), or modify certain protected statutes.  Acts of the Scottish Parliament can also be invalidated at common law if they breach the Rule of Law.

This means that Holyrood is constituted on a different constitutional logic to Westminster.  Whereas the doctrine of Parliamentary Sovereignty ensures that the only ultimate restrictions on the UK Parliament’s legislative competence are conventional or political, Holyrood more closely resembles legislatures in most other constitutional democracies, where limits on legislative power are legally entrenched and enforceable by judges.

After twenty years of devolution, how well is this new constitutional paradigm embedded in Scotland’s political culture?

On the one hand, the existence of legal limits is a well-accepted feature of devolved governance.  Elaborate procedures have been developed for checking the vires of proposed Bills by government and parliamentary lawyers and have ensured that no more than a handful of statutory provisions have been struck down by the courts.  Nevertheless, after a relatively slow start, judicial challenge to contested legislation has become a very real prospect, although the courts have generally been respectful of Holyrood’s democratic credentials, and relatively generous in their interpretation of its powers.

For their part, successive Scottish Governments have shown healthy respect for the Rule of Law.  Although particular judicial decisions have clearly irked, this has not caused any more general questioning of the principle of legal limits on legislative competence.  On the contrary, this appears to be accepted not merely as an inevitable corollary of devolution, but rather as a necessary feature of legitimate decision-making in a constitutional democracy.  This attitude can be found in the work of the Scottish Constitutional Convention, which rooted its proposals for a Scottish Parliament in a claimed “historic Scottish constitutional principle that power is limited, should be dispersed and is derived from the people” (Scotland’s Parliament, Scotland’s Right, 1995, p 10).  Indeed, in contrast to Westminster, where the (much weaker) constraints imposed on Parliamentary Sovereignty by EU law and the Human Rights Act 1998 have produced significant political backlash, the Scottish Government is currently considering proposals to extend legal controls on devolved decision-making by incorporating additional rights into Scots Law. 

On the other hand, the legacy of a political culture forged in the context of Parliamentary Sovereignty, with its expectation of infinite legislative flexibility, still lingers.  This is seen in impatience with reliance on competence constraints as a reason for the Scottish Government failing to take action, for example, to tackle drug deaths, renationalise the railways, or reverse welfare cuts.  It is also seen in claims that a political mandate to hold a second independence referendum should trump legal limits on Holyrood’s power to effect constitutional change.  Such arguments betray an attitude that legislative powers should mirror political will, rather than that political choices should be shaped within the confines of legal competence.

Such attitudes are understandable insofar as the limits on devolved competence are complex, poorly comprehended, and open to interpretation.  The scope of Holyrood’s powers has also changed over time, in response to political demand for greater devolved autonomy.  But there are real risks in ignoring competence constraints.  For instance, when the Scottish Government bowed to political pressure to ban fracking ahead of the transfer of legislative competence and in the face of existing licence-holders’ vested rights, it only survived the inevitable legal challenge by making the embarrassing admission that the supposed “ban” was actually no such thing.  Similarly, as in the case of the Named Persons legislation or the Scottish Continuity Bill, a successful legal challenge may ultimately prove fatal to the Scottish Government’s ability to achieve its policy objectives.

What, then, can be done to embed an understanding of Holyrood as a constitutionally limited legislature more securely within Scottish political culture?  One option would be to engage political actors more explicitly in discussions about the vires of Bills, rather than leaving this to be dealt with behind closed doors by lawyers.  More fundamentally, the adoption of a written constitution, with legally enforceable limits on Westminster’s powers, and a more stable and principled approach to Holyrood’s competence, would create a more decisive break with Parliamentary Sovereignty throughout the UK.  Nevertheless, experience since 1999 tells us that shifts in political culture are harder to achieve than formal changes in constitutional structures.

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