The Scottish Parliament and #indyref2

With Nicola Sturgeon announcing today at the Scottish National Party’s conference that the Scottish Government would be beginning a consultation on an Independence Referendum Bill next week, the inevitable discussion as to whether the Scottish Parliament has the power to legislate for a referendum on the question of Scottish Independence has arisen once again.  On one side there are (largely) independence supporting individuals who state categorically that the Scottish Parliament does have the power to legislate; meanwhile, on the other there are (largely) union supporting individuals who state categorically that the Scottish Parliament does not have the power to legislate.  In my view, both groups are wrong to be so sure in their view:  the situation is not altogether clear.

The Scottish Parliament is not equivalent to the UK Parliament.  It is not sovereign nor is it supreme.  The Scottish Parliament is a creature of statute; it was established by virtue of Section 1(1) of the Scotland Act 1998.  Its powers are set out within that Act, as amended by the two subsequent Scotland Acts of 2012 and 2016.  The supreme and sovereign UK Parliament has established a body with the power to make legislation applicable to Scotland.  The Scotland Act 1998 did not spell out specifically what the Scottish Parliament was able to legislate on, rather it stipulates what the Scottish Parliament cannot legislate on – these areas are set out in Schedule 5 to the Scotland Act 1998 and are known as “reserved matters”.  In respect of these matters the UK Parliament has the sole right to legislate.  On all other areas, the Scottish Parliament may legislate; however the UK Parliament retains the right to legislate on these devolved areas (but will not normally do so without the consent of the Scottish Parliament).

In assessing this question, it is important to look at the language adopted by the UK Parliament within the Scotland Act 1998.  Section 29 of the Scotland Act 1998 makes provision for the legislative competence of the Scottish Parliament.  It begins, in subsection (1), by providing that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”  This is quite clear: where the Scottish Parliament legislates beyond its competence the Act (or the parts thereof that are outside of the Scottish Parliament’s legislative competence) have no legal effect.  Subsection (2) then goes on to list the circumstances in which legislation enacted by the Scottish Parliament would be outside of its legislative competence, the second of which is where “it relates to a reserved matter.”

That all seems pretty clear, any legislation that relates to a reserved matter is outside of the legislative competence of the Scottish Parliament.  As mentioned earlier in this post, the reserved matters are set out in Schedule 5 to the Scotland Act 1998.  Right at the beginning of Schedule 5 to the Scotland Act 1998, under the heading “The Constitution”, there appears the words “the Union of the Kingdoms of Scotland and England”.  Again, this all seems fairly clear: the Scottish Parliament cannot make legislation that relates to the Union of the Kingdoms of Scotland and England.  The Scottish Parliament could not, for example, pass a “Great Repeal Act” of its own with the effect of dissolving the Union between Scotland and England.  So, surely that’s an end of matter?  A Bill to hold a referendum on Scottish independence clearly relates to the reserved matter of the Union of Scotland and England?  Well, it’s not quite that simple.

Section 29 doesn’t just contain two subsections; it contains a total of 5.  The third subsection is one of importance here.  Subsection (3) provides that, subject to subsection (4), when determining whether an Act of the Scottish Parliament relates to a reserved matter, consideration should be given “to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”  It is this subsection that makes things a little more interesting.  Whether a referendum bill was beyond the scope of the Scottish Parliament’s legislative competence would depend, inter alia, upon (i) the purpose of the Bill and (ii) its “effect in all of the circumstances”.

At this juncture we need to consider referendums and their place within the UK’s constitutional framework.  This is an issue upon which the current Judicial Reviews before the High Court in London on the triggering of Article 50 of the Lisbon Treaty following the EU Referendum partly revolve.

The UK has long been recognised as a representative democracy.  The doctrine of Parliamentary supremacy means that Parliament is supreme – nothing and nobody can bind Parliament; one Parliament cannot even bind another.  What one Parliament legislates for today can be repealed by a future Parliament if that is what is within the will of the Parliament that acts to repeal a piece of legislation.  What some argue, therefore, is that referendums do not bind Parliament – indeed, they cannot bind Parliament.  This is where the argument that referendums are merely advisory come from.  This argument essentially reduces referendums to glorified national opinion polls.  They have no effect beyond telling Parliament (and the Government) what the view of the electorate is on the specific question posed at the specific date on which the referendum was held.  You may argue that this not very democratic, but that is beyond the scope of this post.

If the argument that Referendums were merely advisory and were for all intents and purposes glorified national opinion polls is correct, then it can be argued (with some force) that a Bill to enable a referendum on the question of Scottish independence is not beyond the scope of the Scottish Parliament’s legislative competence.  All that Bill would do is enable a national opinion poll to take place – it would not bind the anybody to do anything.  It would certainly not bring about the end of the union between Scotland and England.  Applying section 29(3), it could be argued that the purpose of the Bill is not to bring about the end of the Union, but rather to find out – on a national scale – what the view of the people of Scotland is on the question of Scottish independence (and only on the date upon which the referendum is held).

However, politics comes into play and this could have an impact upon what effect of the Referendum Bill has “in all the circumstances”.  Let us imagine, for a moment, that the Bill is passed and not challenged before the Courts.  The vote happens and there is a majority vote in favour of Scottish independence with a substantial turnout of the eligible electorate.  This would, in practical terms, be something that could not realistically (or politically) be ignored.  The United Kingdom is a union of four separate and distinct countries:  England, Northern Ireland, Scotland and Wales.  It would be hard for the United Kingdom, internationally, to ignore a vote by one of the constituent parts of the United Kingdom to leave that union.  A failure to give effect to it might well lead to international condemnation, pressure and sanction upon and against the United Kingdom.  In short, even if Referendums are merely advisory, the effect of a “yes” vote to independence, at a political level, would mean that Scotland would have to leave the Union and become independent.  The effect “in all the circumstances” here would be to bring about the end of the union between Scotland and England.  This argument, like the first, has some force to it.

The two arguments are quite finely balanced.  The courts could take the view that constitutionally, whatever the political ramifications, referendums are merely advisory and therefore a referendum result in favour of Scottish independence would be binding upon nobody.  Equally, the court could take a look at the words “in all the circumstances” and conclude that the political ramifications are relevant in determining what the effect of a Scottish Referendum Act would be.

As noted above, the EU Referendum Judicial Reviews could be important in determining the question of the Scottish Parliament’s legislative competence to hold a referendum.  If the High Court (and subsequently the Supreme Court) was to determine that the referendum decision on 23 June 2016 did not amount to a “decision” at all because it was effectively nothing more than an opinion poll, then that would lend significant weight to the view that the Scottish Parliament does have the competence to legislate for a second independence referendum.  However, if the High Court were to determine that the EU referendum did amount to more than a glorified opinion poll, then that would lend significant weight to the view that the Scottish Parliament does not have the competence to legislate for a second independence referendum.

This post has, I accept, vastly oversimplified issues that would inevitably take days to argue before the Courts; however, it is quite long enough.  There is absolutely no way that it would be possible to get into the fine details of the issue on a blog – indeed, there are probably several PhD theses in this seemingly simple question.  However, it does (I believe) result in the conclusion that, at this stage, it is impossible to be wholly certain one way or the other, as to whether the Scottish Parliament does (or does not) have the power to legislate for a second independence referendum.  However, one thing can be certain: a referendum bill passed by the Scottish Parliament without there being a further Section 30 Order will be challenged in the courts.

Can the Scottish Parliament block ‘Brexit’?

There has been some suggestion in the days since the EU Referendum, in which a sizable majority of Scottish voters voted to stay while a smaller majority of voters across the UK as a whole voted to leave, that the Scottish Parliament can in some way block the UK’s exit from the European Union.  That suggestion is, in my view, wrong; the Scottish Parliament cannot block the UK’s exit from the European Union.

Since Devolution there has been a convention operating whereby it has been understood that Westminster would not exercise its power as the sovereign and supreme legislative body for the United Kingdom to legislate in an area for which competence over has been devolved to the Scottish Parliament, without first obtaining the consent of the Scottish Parliament.  This convention is known as the Sewel convention.

Following the 2014 referendum on whether Scotland should become an independent country, a Commission was established by the UK Government to look at the Scottish devolution settlement.  That Commission, the Smith Commission, recommended that the Sewel convention was given legislative force.  Section 2 of the Scotland Act 2016 amends Section 28 of the Scotland Act 1998, which confirms in subsection (7) that Westminster can still legislate on areas of devolved competence, to add a subsection (8) which gives effect to that recommendation.  Section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What this means is that Westminster will not normally legislate on a devolved area without first obtaining the consent of the Scottish Parliament.  However, it can still legislate on an area of devolved competence without the consent of the Scottish Parliament (for example, in a time of emergency and where it wouldn’t be practical to obtain the Scottish Parliament’s consent).

What relevance does this have to blocking the UK’s exit from the European Union?  It would appear to me to be of no relevance whatsoever.  Firstly, we are not in a situation where the UK Parliament is going to be legislating.  The UK’s withdrawal from the EU is an exercise by the Executive of the prerogative power to conduct foreign affairs.  The Executive might well seek a vote in the UK Parliament on exercising the prerogative power (in the same way that appears to be becoming convention with the prerogative power to declare war), but that is not a legislative act by the UK Parliament.  Secondly, the United Kingdom’s relationship with the European Union is a specifically reserved matter in Schedule 5 to the Scotland Act 1998.  We are not, therefore, dealing with a devolved matter; we are dealing with a reserved matter.  Section 28(8) of the Scotland Act 1998 only relates to devolved matters.

It might be the case that, when the UK Parliament comes to give legislative effect to whatever relationship the UK is to have with the EU in the future, the Scottish Parliament may be able to invoke Section 28(8) of the Scotland Act 1998.  If that legislation were to affect a devolved area the Scottish Parliament could very well refuse to consent to the legislation; however, that would not necessarily equate to it being blocked.  The UK Parliament might have to rely on the word “normally in section 28(8) to legislate anyway so as to give effect to, what will be by then, the UK’s international law obligations.

The Scottish Parliament is still free to debate and vote on any issues that it chooses to do so.  We could therefore see in the coming days or weeks a debate and vote in the Scottish Parliament on whether the Parliament agrees with the UK’s withdrawal from the European Union.  However, it cannot invoke what is now Section 28(8) of the Scotland Act 1998 in relation to this issue.  Moreover, even it if it could invoke Section 28(8) of the Scotland Act 1998, that would not necessarily have the effect of blocking the action it refused to give consent to.

A problem with the Scottish EIRs

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities.  They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”).  The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information.  The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA.  By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs.  The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland.  Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”).  I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time.  As far as the Scottish EIRs are concerned this section is a problem.  Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs.  In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom.  There is a decision of a third party that is capable of becoming final.  Therefore, Article 6(2) of the Directive is complied with.  However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS.  At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient.  Judicial Review is not an appellate procedure; it is a review procedure.  The Court of Session cannot substitute its own decision for that taken by the public authority.  The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception.   Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA).  Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent.  Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses.  While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive.  Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people.  These fees, payable at various stages throughout the process, will total hundreds of pounds.  The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses).  This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9).  The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”  The Scottish EIRs are regulations and are therefore subordinate legislation.  By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence.  For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved.  The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs.  This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs.  Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to.  All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made.  This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.

The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

West Lothian, EVEL and fudge

The ‘West Lothian Question’ continues to rage on following the Independence Referendum last year, and it has been exacerbated by the Smith Commission.  What is the solution?  A clear majority of Scots voted to remain part of the United Kingdom, whatever you believe about why people voted in that way is irrelevant; that is the situation we are in.

The Conservative Party has outlined a policy to deal with the West Lothian question which is, quite frankly, entirely unworkable.  Trying to police exactly when Scottish MPs can and cannot vote on particular laws will be almost impossible.  Even in devolved areas, legislation passing through Westminster can have a direct impact on Scotland (and not just via the Barnet Formula).  Often, there will be parts – or even just a few sections – in a Bill passing through Westminster that extend to Scotland.  It is entirely ridiculous to suggest that Scottish MPs should not be able to vote on legislation directly affecting their constituents, simply because the bulk of it deals with a devolved area.  It would be a nightmare if you started removing those sections from Bills and putting them in separate Bills – you’d effectively be doubling the work of the UK Parliament.

It gets even more complicated when it comes to Cabinet positions.  Will a Scottish MP be prevented from being Prime Minister because that would have them setting the agenda in devolved areas for England?  What about Home Secretary?  Policing is devolved to Scotland, but that is only part of the Home Secretary’s responsibilities: immigration and national security remain two of most significant elements of that role which are not devolved.  What about Secretary of State for Health: the NHS is devolved, but the regulation of the health professionals (for example) is not.  When it comes to Transport, much of that is devolved; however, there are areas (particularly around regulation) which are not.  The list could go on.  If it is not to apply to Cabinet positions, then why not?  Is there any real difference between setting the policy that the legislation seeks to enact.  What does this do for Collective responsibility in the Cabinet?

Then there is the Committees proposal:  how will that actually work in practice?  Will Scottish MPs be prevented from sitting on certain committees?  Simply excluding them for the committee stages for certain Bills would be a nightmare situation.  The make-up of committees is determined according to the make-up of the House of Commons.  It could mean that Committees no longer represent the make-up of the Commons when you start excluding certain members from the Committees. Committees could become completely farcical; especially when it comes to Bills that include bits applicable to Scotland – would those MPs be allowed to participate in the Committee then?  If not, why not?  Will it mean that Committee sessions will have to stop and start frequently?

Moreover, this could not possibly apply only to Scottish MPs: what about MPs elected to represent Northern Irish constituencies or Welsh constituencies?  The West Lothian question, as it is known, also applies to those situations.  It certainly does appear as though the proposal put forward by William Hague would exclude those MPs as well as Scottish ones, but undoubtedly the reporting focusses on Scottish MPs.  However, if you do extend this rule to Northern Irish and Welsh MPs as well things would become even more complicated and much more messy – the devolution settlements for Northern Ireland, Scotland and Wales are all very different.  There are things which Scotland has (and will soon have responsibility for) which Northern Ireland and Wales do not, equally Northern Ireland has responsibility for matters that Wales and Scotland do not.  As for Wales, from memory, it currently has the poorest devolution settlement; but it has responsibility for issues that its MPs vote on in the Commons for England.  The same issues then arise with the Cabinet as discussed above.  Keeping track  it all will become nothing short of a nightmare!

In short, the proposal by the Conservative Party is a fudge (and an utterly terrible one at that!).

So, what is the answer?  There is no going back to the pre-1999 situation; that much is certain.  The legislative bodies for Northern Ireland, Scotland and Wales are here to stay.  The only real answer is to move towards a more federal structure.  There needs to be an entirely separate English legislative body and the powers of the national legislative bodies (those being the Welsh Assembly, Northern Irish Assembly, Scottish Parliament and the newly created English one) would have to be aligned so as not to have the ridiculous situation we currently have of different national legislative bodies having different areas of competence.

Whenever the question of an English Parliament is raised there are often cries of “we don’t need more MPs”; that’s probably true.  However, if you were creating a separate legislative body for England with its own members, the number of MPs required in the UK Parliament would be significantly less: there would be absolutely no need for there to be 650 people elected to the House of Commons.  They could easily represent much larger constituencies because they would be dealing with far fewer matters than is currently the case.  Overall, there might be a slight increase in the number of elected representatives to ensure fairness, but that shouldn’t stop us from moving in that direction.  It’s certainly not a quick fix, but it is a far fairer and much better solution that the fudge announced by William Hague today.  Yes, it will take time and yes there will be a financial cost to it in the short term (a separate English legislative assembly would likely need its own place to meet – unless you abolish the Lords and have it sitting in there), but really this should have happened in 1998!

What exactly this would look like is a conversation that would have to be had.  All parts of the UK would have to work together to work out what should be handled by the National legislative bodies and what should remain handled by Westminster.  There are obvious things that would need to be handled at a UK level such as Foreign Affairs, Defence, National Security, Immigration and the currency.  There may well be other areas where it would be beneficial to be handled at a UK level, but unless we have the conversation we will never know.

It was clear that whatever the result of the independence referendum in Scotland that there would be significant constitutional change in the UK; that remains the case and it is both a conversation and a process that we cannot walk away from; we certainly cannot try and fudge it!