THE House of Lords – in current focus because of the questionable system of patronage given to prime ministers disgraced or otherwise – yesterday debated the possibility of the UK state sanctioning the Scottish Government for acting outwith the current devolution settlement.
Like a dog with a bone Labour peer Lord Foulkes has continually raised his concerns that the Scottish Government is wasting public money by promoting independence with official documents and support by the civil service.
Foulkes’s argument is based the devolved settlement of the Scotland Act 1998 which lists issues reserved to Westminster. This includes “Aspects of the Constitution”. This was central to the Supreme Court’s judgment last November that the Scottish Parliament could not unilaterally legislate for an independence referendum without the agreement of the UK Government.
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The issues raised in the House of Lords takes this further though – it suggests that not only can specific laws not be debated in Holyrood, but there can be no expense of any kind on matters which are reserved to Westminster. This would include directing civil servants to work on independence discussion papers, publishing them, using official government websites and related resources.
The problem though (as Foulkes sees it) is that there is no clear route for the British state to intervene to stop the elected Scottish Government doing such things. This is in contrast to trying to pass laws on reserved matters where there are a number of set legal procedures that can be used to block changes. We have recently seen this with laws on gender recognition reform and an attempt to incorporate international childrens’ rights.
So the possibility is being raised of bringing “sanctions” against the Scottish Government for not actually passing laws but publishing independence discussion papers and carrying out research into other constitutional settlements. The UK Government indicated this would be considered. Overall this argument seems a bit of a reach though, for a number of reasons.
Firstly; the context that this was raised by Foulkes (above) was in a discussion of the “Cabinet Manual” – a non-legal document. Formally this publication could be seen as a collection of “constitutional conventions” – that is things that should happen in the British state but which have no legal enforcement behind them. It would be unprecedented for a system of punishment or sanctions to be tied to such an instrument. Indeed, the whole concept of conventions are that they are based on cooperation and consensus.
There is also the general democratic argument that the elected Scottish Government – made up of the SNP and the Greens – supports independence. To discuss this and to use officials to do so fits in with their mandate. In the minority SNP government of 2007-2011 an official “National Conversation” was launched on the merits of independence without any legal proposal attached to it. No issue was raised by the UK at this point.
The grey area lies if it went beyond that to creating the structures of a new state. For example, if the Scottish Government drew up a draft constitution for an independent Scotland this could be seen as going beyond general discussion papers on the nature of different constitutional settlements. But even then the mechanism of what action could be taken is unclear.
If there were official Scottish governmental regulations on independence that were passed there could be a possibility of the legal procedure of judicial review being invoked by the UK government. Though currently we are a long way from that.
Although the head of the UK civil service Simon Case (above) has said that they are looking into how Scottish civil servants are being deployed it is only a matter of “guidance” – not official legal sanction.
In the absence of direct legislative intervention by Holyrood on independence the use of any form of punishment or sanction against the Scottish Government seems remote. To raise such a possibility as the House of Lords did though is worrying.
Dr Nick McKerrell is a senior lecturer in law at Glasgow Caledonian University.
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