The publication last week of the House of Lords Constitution Committee’s report into the Proposals for the devolution of further powers to Scotland was widely reported in the media. However, you could be forgiven for having missed the role of academics in helping the committee reached its conclusion unless you read the report in full. Four academics are mentioned in the report, Dr Mark Elliott of the University of Cambridge, Professor Adam Tomkins of the University of Glasgow and the CCC’s Director and Associate Director, Professors Michael Keating and Nicola McEwen.
In Prof McEwen’s evidence to the committee she cautioned that she was "very concerned about the way that the process has unfolded now, post-referendum, which is very quick. It is very rapid. There is not enough time for reflection by anybody. It is moving away from that clarity that we had with the original [1998 Act] devolution settlement, and making something much more complicated and messy, without thinking through the consequences of what that will be. I am sure there will be lots of unintended consequences that emerge as a result."
The final report’s recommendations echo this concern, concluding that: “We do not consider that the Smith Commission process, its conclusions, and this Command Paper represent sufficient engagement and consultation with the public for these significant constitutional changes. Given that the leaders of the main UK-wide political parties had agreed in advance to implement the recommendations of the Smith Commission, which could be characterised as an abrogation of their responsibility to set policy, we are particularly concerned at the speed with which these proposals were formulated and with the fact that there was no meaningful interaction with either the Scottish or UK Parliament, or indeed with citizens and civil society both in Scotland and across the UK.”
A blog by Professor Tomkins on the UK Constitutional Law Association’s site, raised fundamental issues in the committee’s minds and led them to conclude that “It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. It is clear that Draft Clause 1 is designed to be a political and symbolic affirmation of the permanence of the Scottish Parliament and Government. While we do not consider that it imposes any legal or constitutional restriction on the power of the UK Parliament, it does create the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future.”
The evidence session with Dr Elliot and Professor Keating is transcribed as an appendix to the report and focusses on both the process by which the draft clauses were agreed and their contents. In response to wide-ranging questioning, Dr Elliot contrasted the speed of the Smith process with the steady pace of the Stormont agreement: "The Good Friday agreement represented the culmination of a long, thorough and at least in some respects transparent process, and one that ultimately received the assent of a large proportion of the people of Northern Ireland and the Republic of Ireland. When Parliament is presented with a Bill like the Northern Ireland Bill that implements that kind of settled constitutional view, its hands are tied to an extent, and rightly so. The Smith agreement is not in that league."
Again the recommendations pursue this point, making it clear that: “We are concerned that Parliament has been, in effect, excluded from the decision-making process in light of the cross-party agreement already in place among the leaders of the main UK-wide political parties. This significantly restricts its capacity to contribute to the development of these proposals. Parliament is expected to pass these proposals into law without significant amendment, even though it is not clear whether vital considerations such as the impact of these proposals on the UK as a whole will have been taken into account.”
Professor Keating is referenced extensively throughout the document as a whole on issues ranging from the Smith process to the impact on fiscal policy and failure of the UK government to consider the ramifications of greater devolution on the wider constitutional framework within the UK. He focussed particularly on the issue of detriment, advising at the committee’s hearing on 4 February this year, that "The concept of detriment … has been introduced in the Command Paper, which says essentially that if one Parliament does something that imposes a cost upon the other Parliament there should be compensation. That sounds straightforward enough, but it has not been defined properly and potentially has extremely wide ramifications. One could have interpreted it in the narrow sense that if there is a transfer of competences, the money should go with that. But in a broad sense, it seems that almost anything that one Parliament could do could affect the other Parliament. We need to discuss the scope of that—whether it is to have a narrow or broad application, because it could be extremely difficult and get us into all kinds of political and legal difficulties unless it is properly specified."
The committee appears to share his concern, stressing that the “there are key considerations around the fiscal framework that should be addressed by the Government before these proposals are implemented, and explained to Parliament when a bill is introduced.” Before elucidating a range of areas where they feel greater parliamentary scrutiny will be needed.