Devolution and the law: challenges and solutions

The Advocate General for Scotland's speech to the Scottish Public Law Group on long term constitutional issues facing Scotland.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

I am delighted to have been asked to contribute to this programme and to follow on from the contributions of Sheriff Principal Taylor and Roseanna Cunningham. Both dealt with important aspects of Scottish law reform – ensuring that our courts function effectively and that our criminal justice system provides justice for the victims of crime, whilst adhering to and developing ECHR jurisprudence. But in the final session of the day, it would be remiss not to consider some the longer term constitutional issues that face us.

If I may paraphrase the Chinese curse: “We do seem to be living in interesting constitutional times.” The last six months have seen the spotlight falling on the constitutional lawyers in Scotland as never before – some of most learned constitutionalists, after years of lonely wandering in the groves of academe, now find their mantelpieces adorned with invitations: to public seminars, panel discussions, SPLG conferences, radio interviews, debates on Newsnight. I welcome such lively engagement in the debate.

But I sometimes think it is a debate which is presented solely in terms of an independent Scotland against a united United Kingdom. It comes as no surprise that I support the latter position, but within the framework of a united United Kingdom, there has possibly been insufficient attention given to strengths of our devolution settlement.

If the end result of a referendum were that Scotland becomes an independent state, separate from the rest of the United Kingdom, it would certainly mean the end of our union with England, Wales and Northern Ireland – and I acknowledge that some people would welcome that, just as other people would view it with regret. But it would also mean the end of devolution.

I have campaigned for, and argued for, a Scottish parliament within a United Kingdom since joining the Scottish Liberal Party 40 years ago. I campaigned for the creation of the Scottish Parliament in 1997 and 1998. I was proud to serve as both an MSP and as Deputy First Minister. I served on the Calman Commission on Scottish Devolution, which reported in 2009, and I helped take the Scotland Act 2012 – implementing most of the Commission’s proposals - through the House of Lords. So you can understand that I would view the end of devolution with something more than regret.

Devolution is a fairly sophisticated constitutional device – with many complexities - and why not? Although it is often said that the UK does not have a written constitution, it can’t be denied that it has a highly developed and sophisticated constitutional structure. During the last 300 years, there have been many constitutional innovations in this country, so it is hardly surprising that the resulting structure is complex.

The United Kingdom itself, as a construction in constitutional law, is a considerable achievement – nations who had often been united only in enmity and mutual distrust managed to devise a constitutional relationship which preserved a sense of individual national identity for countries within that structure, while at the same time pooling their resources in a joint enterprise. Our long and bloody history before 1707 is celebrated in song and literature, but thankfully our disputes are no longer settled with claymores and muskets.

I don’t pretend that the achievements of the United Kingdom are in themselves decisive arguments for preserving the UK – some may well argue that it was a fine thing once but is no longer of use to us. Nor would I argue that the UK is something preserved in stone which should remain unchanged forever. In fact its strength is its capacity for change – and devolution is the best and most recent example of that strength.

This event today is a particularly appropriate one in which to reflect on the strengths of devolution, because devolved government represents a legal achievement: something built by lawyers – public lawyers – which I would argue has delivered real benefits for the people of Scotland in the context of a stable and strong United Kingdom. We are now in a period of debate before a referendum on Scotland’s constitutional future, and whilst inevitably and properly there will be economic arguments and there will be emotive arguments, our duty as lawyers is to ensure that legal considerations are not marginalised in this process. For example, we must be clear what “independence” means – what it means to be an independent nation state. It isn’t enough to say that we will become independent – we are already, after all, citizens of an independent state, the United Kingdom. We have to consider the legal consequences of seceding from that state, one of which would be an end to devolved government.

Devolved government is not some sort of halfway house on the route to a separate state (although some of us may see it as a stepping stone on the road to a federal settlement). It is a form of government which recognises different levels of political decision making within one state. On the Calman Commission we were able to review the current arrangements and consider the principled reasons why some matters should be devolved and some reserved to the UK. So, for example, it seems uncontroversial to say that decisions about our schools should be made in the Scottish Parliament, by the MSPs who are best placed to consider the interests of our children and their parents, and to ensure that the schools reflect our own culture and educational traditions. But consider social security, or pensions, or defence. Those areas of public administration involve a sharing of risk and, rather like insurance, we are safer if the risk is spread as widely as possible.

The reservations tend to being areas where the there is an advantage in the scale of the larger state: defence and national security; macro-economic policy; foreign affairs; immigration and borders, and so on. But devolution allows services to be delivered at a level where local accountability is paramount – for example, courts and justice, the health service, education, support for small businesses, the environment, agriculture, sport and the arts, the police and fire services. The Scotland Act 2012 has added new areas of responsibility such as the speed and drink driving limits and control of air weapons.

In essence, devolution gives us the strengths of the bigger state of 60 million people when that is best, and the advantages of a state of 5 million people when that works best. It also gives substance to our sense of mutual solidarity in the UK – the sense that the interests of, for example, a pensioner in Shetland are linked to the interests of a pensioner in Sheffield or Cardiff.

And, as the Calman process demonstrates, devolution provides the flexibility to adjust the balance when necessary. The Scotland Act 2012 was achieved with the agreement of both the UK Parliament and the Scottish Parliament. That kind of responsive constitutional change to our relationship with other people in these islands is a feature of our current constitutional settlement – something which devolution can, and does, deliver.

The Calman process is only one example of this flexibility – the devolution settlement has not been static. The Scotland Act 1998 contains a toolkit of powers for the making of subordinate legislation which have allowed for transfers of responsibility to the Scottish Ministers and Scottish Parliament, or for administrative devolution. And they have also been used so that the UK can ensure the effectiveness of devolved legislation when that legislation touches on reserved areas, or requires cross-border recognition to ensure its effectiveness. Since the start of devolution, more than 190 orders have been made under the Scotland Act. Each of them provides an example of close co-operation between the UK and Scottish administrations. If you examine them in more detail you see devolution at work: flexible legal mechanisms are deployed to solve challenging problems.

Those 190 instruments include orders made under Section 30 of the Scotland Act, which is a power whereby the reserved/devolved boundary can be changed by means of an Order in Council, approved by both Parliaments. For example, an order made under section 30 in 2002 transferred competence for the promotion and construction of railways – that transfer of power allowed new Scottish railway projects to be initiated by Acts of the Scottish Parliament (for example, the Stirling-Alloa-Kincardine line, and the Airdrie to Bathgate line).

Section 93 orders allow for UK Ministers to make arrangements for any of their specified functions to be exercised on their behalf by Scottish Ministers and vice versa. There have been 15 Orders in Council made under this section since 1999, to the mutual advantage of both administrations. One example last year allowed the UK Government to purchase on behalf of Scottish Ministers a stockpile of flu vaccines ahead of the winter flu season.

Section 104 orders recognise that to be effective, an ASP may require consequential provision to be made to the law relating to reserved matters or the law elsewhere in the UK. An order made in consequence of the Police, Public Order and Criminal Justice (Scotland) Act 2006 gives police in England, Wales and Northern Ireland powers to enforce Scottish football banning orders - something the Scottish parliament could not competently do, but something required to make the Scottish order fully effective.

Of course, Westminster would have continued to pass legislation on exclusively Scottish matters (for example, for law reform) if no devolved Parliament had been created. But it is unlikely to say the least that we would have seen the equivalent of the 183 Acts of the Scottish Parliament passed in the last fourteen years – from the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 to the National Library of Scotland Act 2012.

Malcolm Rifkind is reputed to have said, some time in the mid 1970s, that Scotland had the only legal system in the world without a legislature to amend, adapt and improve it. There is no doubt that a backlog of Scots law reform had built up at Westminster. But in the first years of the new century the new Scottish Parliament was able to implement a programme of major reform in the sphere of land law – starting with the Abolition of Feudal Tenure etc (Scotland) Act 2000, then the Leasehold Casualties (Scotland) Act 2001, the Title Conditions (Scotland) Act 2003, the Land Reform (Scotland) Act 2003 as well as the Agricultural Holdings (Scotland) Act in the same year. After that, in 2004, came reform of that most distinctively Scottish institution, the law of the tenement in the Tenements (Scotland) Act 2004.

The remarkable legislative achievements of the Parliament in those early years were not confined to civil law. The pace of reform was just as hectic on the criminal side. In the twelve years following devolution nineteen Acts have been passed by the Scottish Parliament in the field of criminal justice. Whilst acknowledging that quantity isn’t necessarily a signal of success, a number of those measures dealt with changes to criminal procedure, others were aimed at specific forms of criminal mischief (for example, football-related disorder); whilst the Sexual Offences (Scotland) Act 2009 arose from a reference by the Scottish Ministers to the Scottish Law Commission and the subsequent ASP replaced most of the common law on sexual offences in Scotland.

One of the benefits of devolution is that, while the Scottish Parliament has enacted this body of law, Westminster has also continued to legislate for Scotland both in reserved and devolved areas. Since the advent of devolution, Acts of the UK Parliament which extend to Scotland include measures relating to counter-terrorism or regulation of financial services - areas where the best approach is to legislate for the whole UK and where, of course, separate provision for Scotland can be made within such legislation.

It is also worth mentioning in the field of law reform, Westminster still has responsibility in reserved areas of policy; and that the Scotland Office will shortly conclude a consultation, with a view to legislation, following on from two Scottish Law Commission reports – one on the law affecting unincorporated associations and the other on the criminal liability of dissolved partnerships – an issue which arose in the aftermath of the tragic Rosepark fire.

Sometimes there is a recognition that it is best for the UK Parliament to legislate for the whole UK even in devolved areas. On more than 120 occasions since the advent of devolution the Scottish Parliament has passed legislative consent motions, agreeing to the UK Parliament making provision in devolved areas.

Some of these have been technical. On other occasions, such as the Proceeds of Crime Act 2002, the two Parliaments agreed that a single consistent piece of legislation was less likely to create unintended loopholes.

If would be surprising, of course, if we had two Parliaments and the members all agreed with each other. We can’t expect the policies of the two governments to be aligned in every case – if devolution helps to bring the powers of government closer to the electorate it serves then it must follow that there will be divergences of views. Too much consensus would not only make for a dull life but it would demonstrate a failure of devolution.

When the Scotland Act was passed in 1998 it was anticipated that there could well be disputes relating to the boundary between reserved and devolved matters; and the Act includes provision for resolving such issues and providing legal certainty. The Lord Advocate, the Attorney General and I can all refer a Bill or any provision in a Bill to the Supreme Court under section 33, and we have additional powers of referral in Schedule 6. In 1998 I expected such referrals to be a common feature of the devolution landscape. By comparison, in the context of European Union law, referrals to the European Court of Justice seem to be part of the ordinary business of the EU, and rarely make headlines or provoke some sort of crisis.

However, contrary to expectations, in the first decade of devolved government we were able to gain very little guidance from the Judicial Committee of the Privy Council (now, in this context, the Supreme Court) on questions of legislative competence. Despite the side note to section 33 of the Scotland Act – that is, “Scrutiny of Bills by the Judicial Committee” – the Judicial Committee and later the Supreme Court had little opportunity to carry out any scrutiny. Whether this was due to the skill of the lawyers drafting the legislation, the negotiating skills of Ministers and civil servants, the wisdom of the legislators, or the forbearance of the Law Officers of each administration, I can only leave to speculation, but when, in the last few years, the courts were able to set out their understanding of legislative competence it was either in the context of criminal law (as in Martin v Most) or in cases raised by third parties (as in AXA Insurance and Imperial Tobacco).
With the exception of a reference from the Attorney General for Northern Ireland in a case where the legislation was similar to than in AXA Insurance, the Law Officers have not invited the Supreme Court to scrutinise any devolved legislation. Outside observers might find that surprising.

Certainly, I think observers from other jurisdictions where there are different levels of government will find it surprising. Many of you will have attended the talk to this Group last week from the Chief Justice of the Canada, Beverley McLachlin – she gave us a fascinating insight into her court’s jurisdiction in the constitutional disputes between federal and provincial governments in Canada. It was clear that most disputes between the different layers of government were resolved behind the scenes – but in resolving those disputes the different governments had the benefit of a considerable body of case law which had been developed in the course of litigation in the highest courts. While many problems could be resolved in the shadow of the courts, the world did not necessarily come to a shuddering end just because a court was asked to adjudicate on a constitutional matter.

In the context of our devolution settlements, we should now accept that if legislation is referred, by any of the Law Officers, to the Supreme Court, this would not be in any way disrespectful to the legislature, or even to the electorate. Quite the contrary: it would be an acknowledgment that the devolution settlement was sufficiently mature and established that we could ask the court to adjudicate on the division of powers between Scotland’s two governments and two Parliaments without there being any implication that the settlement itself was under threat. We would be looking to the court to offer guidance that would help both administrations to continue working together, with the benefit of a better understanding of the underpinning legislative framework.

An example of the increasing maturity of the devolution settlement can be found in the dispute over the role of the Supreme Court itself. Last summer, concern about the role of the UK Supreme Court in Scottish criminal appeals threatened to take an unpleasant turn as criticisms were directed at members of the judiciary. There were also more reflective concerns expressed by some judges themselves about whether or not the determination of devolution issues by the Supreme Court, introduced by the Scotland Act, was in fact leading to a system of appeals in criminal cases to a court outside of Scotland.

Whatever view one took of that dispute, there was clearly a need for the matter to be resolved and the Scotland Bill provided an opportunity to address it. Indeed, prompted by a Calman Commission consultation response from the Senators of the College of Justice, I had already commissioned an expert group chaired by Sir David Edward to review rights of appeal to the Supreme Court in criminal cases. The Scottish Ministers then set up an expert group, chaired by Lord McCluskey. Whilst not surprising that the two groups were not completely in agreement, there was a remarkable amount of common ground, both groups recognising the need for some form of human rights law scrutiny by the Supreme Court.

Responses to our consultation on that issue showed that a number of representative groups were keen to ensure that there was some oversight at UK level of the way Convention rights were applied in each of the UK’s legal jurisdictions. There was also a concern not to erode the position of the High Court of Justiciary as the highest court of criminal appeal in Scotland.

I believe that these concerns have been addressed by the provisions now in sections 35 and 36 of the Scotland Act 2012 - passed by the UK Parliament and approved by the Scottish Parliament. That agreement represented a considerable achievement in terms of negotiations between officials and members of the two governments. If one considers and reflects on the tone of the public exchanges at the beginning of the dispute, this is, to my mind, a very powerful example of devolution working in the best interests of everyone.

I do believe that our system of devolved government serves Scotland well, and I welcome the opportunity to put forward that view both generally and in the context of the referendum debate.

I said earlier that I thought lawyers had a duty to ensure the law was respected in the current constitutional debate. Any referendum should be fair and decisive – we do not want a situation where after the referendum one or other side consider that there has been some jiggery-pokery, and to ensure that does not happen, we need the referendum to be legal as well as fair and decisive. There is flexibility within the devolution settlement to achieve this end. Again the toolkit can supply a solution to the challenge – an Order under section 30 of the Scotland Act, approved by both Parliaments, could put the issue of legality of the referendum beyond doubt. It will serve no-one’s interests if the referendum can be attacked on legal grounds.

In the months ahead the Coalition Government will continue to make the case for the United Kingdom. We will hear about the benefits of our shared cultural and historic ties, of greater influence on the world stage, and of the economic advantages of unity. The thought I wish to leave with you today is that devolution is one of the advantages of the United Kingdom - it is a product of united, co-operative thinking, rather than of disunity.

Published 11 June 2012