The Scottish Question and the English Question

Students of Public Law should have noticed that the subject of devolution, which for some years has been non-examinable, has bounced back into the syllabus in 2013/14 as part of what is fashionably called multi-level governing.

Some may regret this widening of the horizons of the syllabus beyond what is strictly English law. However, English law is situated in a multi-jurisdictional state, the United Kingdom of Great Britain and Northern Ireland. Besides, as many commentators have suggested, 2014 will be a year in which questions of national identity are prominent and significant. There will be elections in May for the European Parliament, the outcomes of which will be influenced by attitudes to European integration in Britain and also in other member states.

A few months later, residents of Scotland (only) will have the opportunity of deciding whether their future lies in continuing as part of the United Kingdom or in the direction commended by the Scottish National Party as “independence in Europe” (the slogan was intended to reassure, but may be thought oxymoronic). Following the enactment by the Scottish Parliament of the Scottish Independence Referendum (Franchise) Act 2013, we know now who will be entitled to vote on the question: those who are residents in Scotland and entitled to vote in local authority elections there, plus (for this occasion only) 16 and 17 year olds who would qualify. Another Holyrood Parliament Act, the Scottish Independence Referendum Act 2013, provides for the poll to be held on 18 September 2014, and sets some ground rules for the contest. The question on the ballot paper, approved by the Electoral Commission, will be: “Should Scotland be an independent country?”

The Scottish Parliament was given authority to legislate for the referendum by an Order in Council (SI 2013/242) transferring the subject-matter temporarily to the areas of devolved competence (which section 30 of the Scotland Act 1998 allows for). Although there was some disagreement on the issue amongst lawyers, the better view was that otherwise Holyrood would have lacked competence, because legislation would have related to a “reserved” matter under Schedule 5 of the Scotland Act 1998. The Order in Council (which required approval by the Houses of Parliament at Westminster along with the Scottish Parliament) was passed following the Edinburgh Agreement negotiated between the British Government and the Scottish Government in October 2013. Part of the price exacted by the British Government was agreement that there should be only one question on the ballot paper, rather than a multi-option referendum which might have muddied the waters.

The immediate cause of the calling of the referendum was the success of the SNP in the Scottish Parliament general election in 2011 (when it won 53% of the seats, albeit on 45% of the votes, and so formed a government with an overall majority), which was accepted as providing some kind of mandate or entitlement to have the question put.

An inveterate opponent of the creation of a Scottish Parliament, Tam Dalyell (a Labour MP from 1962 to 2005) used to warn that its establishment would provide “a motorway without exit” to the disintegration of Britain and, if there should be a Yes vote in September, we may be liable to conclude that he was right. On another view, devolution measures can act as a safety valve, releasing some of the pressure that could otherwise lead to the break-up of a state. As one of the textbooks puts it, “affording a degree of authority to regions within a state…can ultimately enhance the integrity of the state by allowing regional differences…to be accommodated” (M Elliott & R Thomas, Public Law, p. 269).

The devolution arrangements for Scotland, Wales and Northern Ireland are, of course, asymmetrical and what is more, the pattern is visibly incomplete. If there is a Scottish question which, in actuality, is about to be asked, there is, as the literature puts it, an English question which is scarcely addressed, a dog that has not barked in the night, or not so far. The absence of an English Parliament and Government (or assemblies in English regions) may not yet be a gaping hole, but might easily become one in some circumstances.

Some tentative steps towards English regionalism that were taken under the Labour governments (these are mentioned in an extract at p166 of the course textbook by Le Sueur, Sunkin & Murkens) have in fact been retracted under the present government: regional development agencies were abolished by the Public Bodies Act 2011.

In seeking to deal with the ‘West Lothian question’, the coalition government asked the McKay Commission to report on ways in which House of Commons procedures might be adapted to ensure that there would be “English votes for English laws.” Not surprisingly, the Commission’s report in March 2013 (tmc.independent.gov.uk) offered rather fuzzy suggestions, which are still being mulled over by the Government. However, using the British Parliament as a proxy for an English Parliament is not going to be very satisfactory in the long run, when other parts of the UK are steadily evolving with their own political dynamics.

This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.