The Scottish Public Law Group Annual Conference

The Rt Hon The Lord Wallace of Tankerness, QC, Advocate General for Scotland, addresses the Scottish Public Law Group Annual Conference.

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

The Rt Hon Lord Wallace of Tankerness QC

I am conscious that I speak to you now at the end of a long (and stimulating) day of discussion on public law topics. It may have been a beguiling prospect at 9.30 this morning, to have six hours of discussion ahead of us, but even to those of us who proudly wear the anorak of enthusiasm for public law, and who find fascination in the business of government, there comes a point in the day when we look to the prospect of a drink, collect our CPD hours and look forward to what follows.

And for what has been a most enjoyable and profitable day, I must give thanks to all speakers today, and to give thanks, on behalf of us all to SPLG for organising this event and to Edinburgh University for allowing us to hold it in such splendid surroundings.

But although we may be at the end of a long day, I don’t think I am alone in detecting a buzz in the air around the topic of constitutional reform. The reason for that is that those of us who have campaigned for constitutional reform all our lives are standing at the beginning of an unprecedented era of further change. In saying that, I would also wish to recognise the record of the previous government in the constitutional field. In the first Parliament of the Labour administration we saw important strides forward on a number of constitutional issues: the devolution of power to Parliaments and Assemblies in Scotland, Northern Ireland and Wales; the incorporation into our domestic law of the European Convention of Human Rights; freedom of information legislation; and progress on the work started by Asquith’s government in 1911 of reforming the House of Lords.

But, the advent of coalition government following the general election has opened up the real possibility of a new politics in the United Kingdom. The Deputy Prime Minister summed up how this opportunity will be grasped in his recent speech on political reform:

“This government is going to transform our politics so the state has far less control over you and you have far more control over the state.”

And he went on to say that this would be “a fundamental resettlement of the relationship between the state and citizen…”

That of course brings us into the heart of what much of public law is about. I don’t underestimate the scale of the challenge. And in the minutes left today, I just want to make reference to three of the proposed reforms and address some of the issues which have already arisen.

We have just had an interesting session on Scotland, the Union and the Constitution in the aftermath of the election. I don’t want to rehearse all the arguments, but on one Calman Commission issue, I should like to offer some clarification, and I can say to Duncan [Hamilton] that this Government is willing to engage on these financial details.

It is widely reported that our coalition government proposal to raise the personal tax threshold to £10,000 has fatally undermined the Calman proposals on increasing the Scottish Parliament’s fiscal responsibility. I hope that, as a member of that Commission, I can dispel that myth.

Commission members not only gave consideration to contingencies such as a significant change in the tax base by the UK government, but we also had the benefit of advice from a distinguished independent panel of experts under the chairmanship of Prof. Anton Muscatelli. And we were confident in the robustness of our recommendations. Indeed, writing in the Times on Saturday, Professor Muscatelli confirmed that there are no technical flaws in our recommended scheme.

Because changes to income tax thresholds would have a material effect on the revenue from Scottish income tax, there would have to be a corresponding adjustment to the block grant. That actually is the position at present, and the fact that the Scottish Government has been able to calculate the alleged ‘shortfall’ suggests that the reckoning should not prove too difficult.

But the Calman proposals go further. The Commission’s report recommended that the Treasury should not be judge and jury on these issues. It proposed that there should be a new and more transparent system of intergovernmental co-operation. How we secure such greater openness will form part of the implementation process. Anton Muscatelli’s suggestion that the new Office for Budget Responsibility might have a role is one which could well merit consideration.

Another subject which has excited the political commentariat and some politicians too, since the announcement of the Coalition Agreement has been the introduction of fixed term parliaments and the associated constitutional machinery.

The Government has already set the date we think the next general election should be on, that is, May 7th 2015. We can put that date in our diaries now - the birthday of Scottish philosopher David Hume (1711). Perhaps he might have appreciated the rationality of this proposal and its appeal to human reason.

The election will be on May 7th 2015 no matter where the government stands in the opinion polls at that time. But that does not mean that Parliament will lose the capacity to dissolve itself. The proposal is that Parliament would be dissolved before that date if that early dissolution gained the support of 55% or more of MPs.

What precisely does that mean? I ask the question because these has been some public and media debate about this proposal, not all of it as well-informed as one might hope.

For a well-informed perspective, can I ask you to consider the views of the former Lord Chancellor and Lord Advocate, Lord Mackay of Clashfern, who made a notable contribution to the debate in the House of Lords on the Queen’s Speech. He pointed out that one of the advantages of a fixed term was

“…removing from a Prime Minister the temptation to go for an election when the party that he leads happens to be high in the opinion polls - or, occasionally, when he feels that there is a disaster around the corner and is anxious that the election take place before it comes.”

Lord Mackay, quite rightly, focussed on the nub of this proposal: removing the Prime Minister’s current tactical advantage of being able to name the date of the election within a five year Parliament. But Parliament would retain its power to hold the Government to account and to remove it from office. Lord Mackay continued,

“As I understand it,…, the proposal is in no way to interfere with the rule that a government lose their mandate to govern if they lose a no-confidence motion in the House of Commons by 50 per cent plus one of those voting. Fifty per cent of those voting plus one brings down the Government.”

And he went on to say: “If the Government in office lose the confidence of the House of Commons, it does not necessarily follow that Parliament should be dissolved, even under our present system… But if you have a fixed-Parliament rule, you must have some protection against easy and arbitrary dissolution.”

In other words, we must distinguish between a vote to bring down the Government and a vote to dissolve Parliament. For dissolution, it is proposed that the support of 55% or more of MPs should be required for a dissolution. I would suggest, as Lord Mackay does, that 55% is reasonable, and might be contrasted with the two-thirds majority required for dissolution of the Scottish Parliament. In 1998, during the passage of the Scotland Bill, Parliament considered that a two-thirds majority for dissolution was required in the Scottish Parliament - and it would now seem odd to argue that 55% is too restrictive a limitation on the UK Parliament. Lord Mackay concluded by suggesting that those framing the new legislation should look closely at the detail of the Scotland Act, and I believe that is precisely what we will do.

It seems to me that the experience of the last few years of the previous administration, and now the formation of a coalition government for the first time since World War II, make it imperative that Parliament sits for a fixed term. I have now been involved in the negotiations for two coalition governments - one in the Scottish Parliament, with the Labour party, and, now, in the UK Parliament, with the Conservative party - and I bear witness to the need for a written programme for government. There must be a clear partnership agreement between the parties to the coalition; and there must be a clear, and agreed, policy statement. Without that clarity, it will appear that the larger party has simply incorporated members of the other party into government. The programme must be set out openly. It must be available for public scrutiny so that the electorate can see what each party brings to the coalition. Then the electorate can see what has been agreed and it will make its judgment accordingly - in, as I said, May 2015.

The legislative and policy objectives of the coalition Government are set out in writing and the process is transparent. Just as happened in Scotland in 1999 and 2003. Indeed, the existence of a partnership agreement ensured that both following the untimely and tragic death of Donald Dewar in 2000, and the resignation of Henry McLeish as First Minister, a year later, there was a clear policy basis for the coalition to continue, albeit under a new First Minister.

There always will be events, and plans must adapt - and there may be occasions when Parliament reaches the conclusion that dissolution is necessary. The proposal here is not that Parliament loses that power - rather it is that that power is taken out of the hands of the one man who currently holds it.

So, I would take issue with those see the 55% rule as an assault on Parliamentary sovereignty. It is in fact a strengthening of the power of Parliament as opposed to the Executive. That is, the House of Commons will still be able to dismiss the Government - with a simple majority of the MPs voting. The possibility would then be that another Government could be formed from among the Members. And, in the final analysis, it would still be possible for the Commons, and no other body, with the support of 55% of its Members, to dissolve Parliament. As my colleague, the Deputy Leader of the House of Lords, Tom McNally, put it in the Queen’s Speech debate:

“Parliament would still be able to dismiss a Government, but the Government would not be able to dismiss Parliament.”

One further issue which I should wish to refer to is the commitment in the Coalition Agreement, which states:

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention of Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”

Over many years I campaigned for the incorporation of the European Convention on Human Rights into our domestic law, and, as I’ve already indicated, I welcome the steps taken by the incoming Labour Government in thirteen years ago to do just that, leading to the Human Rights Act 1998. Given the case law and jurisprudence which has flowed from the Act, It’s important to remember that, at heart, we were talking about “bringing rights home”, and not confining Convention rights to those with patience and means to vindicate them in Strasbourg.

However I must confess that after the decision in Starrs & Chalmers, I reflected that when I campaigned for incorporation of the ECHR into our domestic law, it had never occurred to me that I would be the Minister at the receiving end of the first controversial decision. But I can assure you that I still passionately hold to the view that I would rather live in a country where the Executive is held to a standard of human rights rather than one where government can ride roughshod over human rights.

And that is why I emphasise the words of the Coalition Agreement that any new British Bill of Rights will “incorporate and build on all our obligations under the European Convention of Human Rights, [and] ensure that these rights continue to be enshrined in British law,”

This is not a retreat from the European Convention. For what such a Bill of Rights might look like, can I commend a speech by my colleague, the new Attorney General, Dominic Grieve, delivered on 30th November, last year? He suggested for example, that we might look at identifying a principled way of striking the balance between privacy law and our much cherished freedom of expression; or considering the power of the state to impose administrative sanctions without due process of law.

He also suggested that it could include the right to trial by jury for indictable offences - an English concept which throws into focus the point that any change to the Human Rights Act has consequences for devolved administrations throughout the United Kingdom. It will be crucial that the Scottish dimension (or, for that matter the very sensitive issues around the issue of human rights in Northern Ireland) are properly considered by the proposed commission. I shall certainly be mindful of my responsibility to see that Scots law is accorded its proper place as proposals develop and I would certainly hope that the expertise present at this conference will make a full contribution to the debate and the commission with a view to determining what, if anything, Scotland wants.

Indeed, with such a substantial constitutional reform agenda, I’m sure academics and practitioners will be kept fully occupied. An event like today’s highlights the importance of the work of the Scottish Public Law Group, and I look forward to discussing many of these issues with you as our radical reform agenda moves forward.

(Address delivered by the Rt Hon the Lord Wallace of Tankerness QC, Advocate General for Scotland, at the Playfair Library, Edinburgh, on the occasion of the annual conference of the Scottish Public Law Group, 7th June 2010).

Published 7 June 2010