| CHAPTER 4 |
| THE NEW CONSTITUTIONAL ARRANGEMENTS |
4.1 This Chapter has four key elements: the nature of the constitutional arrangements; the structure of Scottish government; the future liaison machinery between Edinburgh and Westminster; and mechanisms for reaching agreement on any contested issue of competence.
Nature of the new constitutional arrangements
4.2 Under the Government’s proposals, the UK Parliament will devolve wide ranging legislative powers to the Scottish Parliament. Scotland will of course remain an integral part of the United Kingdom. The Queen will continue to be Head of State of the United Kingdom. The UK Parliament is and will remain sovereign in all matters: but as part of the Government’s resolve to modernise the British constitution Westminster will be choosing to exercise that sovereignty by devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers. The Government recognise that no UK Parliament can bind its successors. The Government however believe that the popular support for the Scottish Parliament, once established, will make sure that its future in the UK constitution will be secure.
4.3 The Government have given careful thought to the best way of building stability into the settlement. The Scotland Act 1978 provided for the transfer of specified areas of legislative and executive competence, as set out in Schedules 10 and 11 to the Act. It would have required frequent updating and might have given rise to regular legal arguments about whether particular matters were or were not devolved. This approach now seems incompatible with the Government’s objective of ensuring maximum clarity and stability. Consequently the legislation establishing the Scottish Parliament will follow the approach of the Northern Ireland Constitution Act 1973 in listing matters reserved to the UK Parliament rather than specifying devolved matters.
4.4 There will be provision for transferring further matters to and from the reserved list by Order in Council, which would be approved by both Parliaments. This will enable the boundary between reserved and devolved matters to be adjusted as appropriate and as the need arises. There may be instances (e.g. international obligations which touch on devolved as well as reserved matters) where it will be more convenient for legislation to be passed by the UK Parliament.
4.5 Scotland’s Members of Parliament will continue to play a full and constructive part in the proceedings of the House of Commons. This is right both for Scotland and the United Kingdom because devolution is about strengthening the United Kingdom. The distribution of seats in the House of Commons will be reviewed by the Parliamentary Boundary Commissions which follow criteria defined in statute. At present, special statutory provisions stipulate a minimum number of Scottish seats. The Government have decided that in the next review this requirement will no longer apply. Other statutory requirements, notably the need to give due weight to geographical considerations and local ties, will continue to apply to reviews for Scotland in the same way as they will apply to reviews for other parts of the UK.
4.6 It will be for the House of Commons to consider its future arrangements for Scottish business.
The structure of government in Scotland
4.7 As outlined in Chapter 2, executive power in devolved areas will be exercised by the Scottish Executive. The Scottish Parliament will hold the Executive to account for its actions. Ministers of the Scottish Executive will be answerable to the Scottish Parliament, and that Parliament’s committees will be able to scrutinise and report on the effectiveness of the Executive’s administrative action and its use of public monies voted to it by the Parliament.
4.8 The Scottish Executive will require the services of Law Officers to provide it with advice on legal matters and to represent its interests in the courts. The responsibilities of the Lord Advocate for the prosecution and investigation of crimes and offences (including those relating to reserved matters) are to be devolved. It is therefore appropriate that the Law Officers of the Scottish Executive should be the Lord Advocate and the Solicitor General for Scotland. The traditional independence of the Lord Advocate as public prosecutor will be maintained.
4.9 The UK Government will continue to need advice on Scots law (whether reserved or devolved). Accordingly a new post of Scottish Law Officer to the United Kingdom Government will be created.
4.10 As noted in Chapter 1, the Government are committed to Freedom of Information legislation throughout the UK. The Scottish Parliament will be able to determine the approach of the Scottish Executive and other Scottish public bodies to openness and the freedom of information within areas of devolved competence.
4.11 In the UK context, the Parliamentary Commissioner for Administration (often known as the Parliamentary Ombudsman) is independently appointed to investigate complaints about the Government’s handling of matters. He will continue to deal with complaints from Scotland about the UK Government’s handling of matters where responsibility has not been devolved. For complaints about the handling of devolved matters, there will be similar arrangements for Scotland, based as closely as possible on the UK Ombudsman legislation.
Liaison machinery
4.12 The role of the Secretary of State for Scotland will be to secure the passage and implementation of the legislation to establish the Scottish Parliament; and then to support its initial development. Once the Scottish Parliament is in being, and the Scottish Executive established, the responsibilities of the Secretary of State for Scotland will change. The focus will be on promoting communication between the Scottish Parliament and Executive and between the UK Parliament and Government on matters of mutual interest; and on representing Scottish interests in reserved areas.
4.13 The Scottish Executive will need to keep in close touch with Departments of the UK Government. Good communication systems will be vital. Departments in both administrations will develop mutual understandings covering the appropriate exchange of information, advance notification and joint working. The principles will be as follows:
• the vast majority of matters should be capable of being handled routinely among officials of the Departments in question;
• if further discussion is needed on any issue, the Cabinet Office and its Scottish Executive counterpart will mediate, again at official level;
• on some issues there will need to be discussions between the Scottish Executive and Ministers in the UK Government.
4.14 Representatives of the UK Government (usually the Secretary of State for Scotland) and the Scottish Executive will meet from time to time, to discuss particular issues or simply to take stock of relations. These arrangements will be updated regularly to reflect the evolution of administrative conventions of co-operation and joint working.
Reaching agreement
4.15 The Scottish Executive and the UK Government may from time to time take different views of the Scottish Parliament’s legislative powers. There will therefore be procedures for identifying and resolving any such difficulties. The Government believe that, given an open and constructive relationship between the UK Government and the Scottish Executive, problems will usually be resolved quickly and amicably.
4.16 In drafting legislation for consideration by the Scottish Parliament, the Scottish Executive will take legal advice to ensure that the provisions brought forward are within the Scottish Parliament’s powers. In any cases of uncertainty, there will be consultation with the Scottish Executive Law Officers and as necessary more widely. It will be for the Presiding Officer of the Scottish Parliament to satisfy himself or herself that legislation, whether brought forward by the Executive or by others, is intra vires before giving approval to introduction. These pre-legislative checks will ensure that any potential difficulties are identified at the earliest possible point. During the Parliamentary passage of legislation, it will fall to the Presiding Officer to certify that all amendments selected for debate are within the remit of the Scottish Parliament. UK Government Departments will be able to discuss any concerns which they might have with the Scottish Executive at that stage.
4.17 Prior to a Scottish Bill being passed forward from the Presiding Officer to receive Royal Assent, there will be a short delay period to ensure that the UK Government is content as to vires. In the event of a dispute between the Scottish Executive and the UK Government about vires remaining unresolved, there will be provision for it to be referred to the Judicial Committee of the Privy Council. For this purpose the Judicial Committee will consist of the Lords of Appeal in Ordinary. At least five Law Lords will sit in any case. The size and composition of the Committee will be decided by the Senior Law Lord (or, in his absence, the next senior Law Lord who is available) who will also decide where the Committee is to sit in any particular case. As appropriate, this might be in Edinburgh. The Judicial Committee will also be able to hear any subsequent disputes about devolution issues in relation to secondary legislation and Acts of the Scottish Parliament after Royal Assent.
International relations
4.18 Special arrangements will be needed for the handling of questions of international relations, and for the exercise of domestic powers which are capable of affecting the UK’s international relations. The guiding principle is that the UK should be able to speak with one voice in the international arena and to advance policies (for example in international negotiations) which take proper account of the interests of all parts of the UK. It will also be essential that the UK Government is in a position to implement obligations it has undertaken in good faith internationally or which are imposed on the United Kingdom by international law.
4.19 For these principles to be implemented effectively where devolved areas of responsibility are involved, arrangements will be made for the Scottish Executive to play a part in the conduct of international negotiations through close liaison with the Whitehall Departments concerned; or in appropriate cases through direct representation on the UK delegation. The Scottish Executive and Parliament will also, where necessary, implement the international obligations which fall on the UK Government and Parliament.
4.20 The implications for devolution of incorporating the European Convention on Human Rights into domestic law will be dealt with as part of the process of legislating for incorporation. The Government will be setting out their proposals for this in a White Paper to be published later this year.
4.21 In summary, the proposals set out in this Chapter establish a clear and durable framework within which the Scottish Parliament and Scottish Executive can exercise their powers and discharge their responsibilities. The detailed settlement set out above will provide a firm foundation for future relationships.