- Constitutional Law of Scotland by Alan Page
W. Green, 334 pp, £95.00, June 2015, ISBN 978 0 414 01456 5
Notwithstanding the 55:45 split between unionists and nationalists in the independence referendum last autumn, the major – if unacknowledged – cleavage in Scottish politics lies within the SNP itself, between its cannily cautious leadership and its enthusiastic rank and file. The SNP has grown phenomenally since last September, when it had about 25,000 members, to its current tally of more than 100,000. At the general election the SNP took 56 of the 59 seats in Scotland, and would have taken 57 and wiped out Labour entirely north of the border had the SNP’s candidate in Edinburgh South, Neil Hay, not been exposed shortly before the vote as the pseudonymous internet troll Paco McSheepie. Inter-party competition within a first-past-the-post system allowed the SNP to hoover up most of the pro-independence vote (give or take some support for the Greens). On the other hand, the pro-Union vote was divided among Labour, the Tories, the Liberal Democrats and, strange as it may seem, the SNP, which downplayed any talk of independence and masqueraded instead as Authentic Old Labour.
Under normal circumstances, the SNP would have interpreted its 56-seat triumph as a mandate to negotiate independence. But at the current juncture, in the aftermath of its defeat in the referendum, the SNP is playing a different game. It cannot be seen to overturn the popular will, and it is far from clear that a second referendum would yield a victory for independence. Labour voters were troubled by their party’s participation alongside the Conservatives in the cross-party ‘No’ campaign, Better Together, and the SNP seized the opportunity to smear Scottish Labour as Red Tories. In this year’s general election the SNP did not so much topple Labour as impersonate it. But the situation is more complicated still. The SNP had for decades courted old-style Liberals in small towns and the rural peripheries, and more recently has also won the votes of disorientated Scottish Tories, impressed by the SNP’s unfussy competence as a minority government between 2007 and 2011. As a result, the SNP currently occupies virtually the whole bandwidth of Scottish politics, unionism included.
The Union itself is no longer a rallying call for the pro-Union parties, which complacently support one concession after another of enhanced autonomy for Scotland; anything, it seems, to buy off the threat of independence. Ironically, the SNP is the only party to mount an uninhibited case for the Union – for the Union of the Crowns under a shared British monarchy, for a currency union using the pound sterling and for a ‘social union’, with its crafty suggestion of common welfare standards. The SNP also makes the case for the European Union; the only union it doesn’t support is the one that matters, the Union of 1707 which underpins the British state.
However, the SNP is circumscribed by the very forces it has won over. The SNP-voting Liberals and Tories of Middle Scotland are attracted by the SNP’s reluctance to use the powers it inherited under Labour’s Scotland Act of 1998. Not only did the SNP never use the 3p in the pound tax-varying competence which the public authorised in the second question of the 1997 devolution referendum, but it also emerged in the autumn of 2010 that the SNP government had quietly allowed the power to lapse. On the other hand, to keep its nationalist and Labour voters excited, the SNP keeps agitating for the devolution of yet more fiscal powers. Tony Blair has – accurately enough – described the SNP as ‘a government that’s allowed to behave like an opposition’, though this doesn’t quite capture the party’s apparent bewitchment of an ostensibly pro-Union electorate. The SNP functions more like a cargo cult than a conventional political party. It has successfully persuaded a majority of the Scottish people that by way of certain ritualised protests it can obtain all manner of goods from Westminster, and convinced a substantial pro-independence minority that a secular millennium is just around the corner.
In time the Teflon will wear off, but for the moment nothing – whether bad news or inconvenient facts – seems to stick to the SNP. It’s a mysterious phenomenon, though on certain issues it’s clear why the SNP brand remains untarnished. In its eight years at the helm of the Scottish government the party has been a determined centralising force, showing little regard either for genuine freedom of choice in local government or for the traditional hands-off autonomy enjoyed by other public institutions. In a one-sided concordat with local authorities, there has been an undercompensated council tax freeze for eight years in succession. The SNP has also created a unitary national police force, which appears, unsurprisingly, insensitive to differences between the kinds of policing required in the urban areas of the Central Belt and the sleepier towns of l’Ecosse profonde. Concerns have been raised about the use of armed officers in Inverness, the closure of local police stations and the failures in communication that left a couple unattended for three days after an accident on the A9 was reported to the police (they both died). Gordon Wilson, a former leader of the SNP, has called for the break-up of the national police service, and the creation of four new regional forces. Yet, this brouhaha notwithstanding, the controversy over police reforms has not translated into a perception of the SNP as centralisers. After all, doesn’t it stand for autonomy from the UK government? This understandable focus on Scotland’s relations with the UK has obscured the situation within Scotland; and this is the reason why the seemingly arid subject of Scottish constitutional law matters so much.
Although a few pioneers in the 1950s and 1960s suggested that ghostly residues of Scotland’s pre-1707 constitution might – or, rather, should – still lurk at the heart of the British constitution, the discipline of Scottish constitutional law has largely sprung up since the coming of devolution. Previously, as Alan Page notes, Scottish constitutional law was generally assumed to be ‘indistinguishable from that of the rest of the UK’. Indeed, one of the traditional failings of British constitutional jurisprudence which Page identifies has been its neglect of the ‘territorial’ dimensions of government within a multinational state.
Although Page maintains a neutral register, and studiously avoids political engagement, the merest occasional hint – no more than that – of a raised eyebrow or sigh of disappointment carries all the more force. Just as the long-standing convention at Westminster that government ministers refrain from criticism of the judiciary has been breached in recent years, so too at Holyrood, Page observes drily, there was little ‘evidence of restraint in the responses of the first minister and the cabinet secretary for justice’ to the UK Supreme Court’s decisions in the criminal appeals Cadder v. HM Advocate (2010) and Fraser v. HM Advocate (2011). Although the House of Lords had consistently exercised an appellate role with regard to Scottish civil appeals, the situation with regard to criminal appeals was different. In the early years after 1707 the House of Lords accepted appeals from Scotland’s pre-eminent criminal court, the High Court of Justiciary, but by the later 18th century a general presumption prevailed that there was no right of criminal appeal from the Justiciary Court within the terms of the Union (which were strangely – deliberately perhaps – vague on the question of appeals from the Scottish courts). This stance was confirmed by the Criminal Procedure (Scotland) Act (1887). However, in recent years the new UK Supreme Court has assumed the role of ensuring compliance with the European Convention on Human Rights and EU law, and judged these two cases as breaches of convention rights. The Supreme Court’s overruling of the Justiciary Court infuriated the SNP administration.
For all that the SNP’s primary goal is ending the Union of 1707, it tends, oddly, to favour a strict construction of its articles, which include guarantees for an independent Scottish legal system. Here the SNP perceives that the terms of the Union agreement of 1707 themselves enshrine a recognition of Scottish nationhood. After the Cadder decision the Scottish government established a group of experts under the chairmanship of Sir David Edward to examine the UK Supreme Court’s jurisdiction in Scottish criminal appeals. The experts favoured continuation of the Supreme Court’s jurisdiction. Irritated, the SNP set up a further review group under the chairmanship of Lord McCluskey. Alas, that group endorsed the views of the first panel. In the interim Alex Salmond, then the first minister, and his secretary for justice, Kenny MacAskill, had engaged in highly personal attacks on the UK Supreme Court and its members, prompting the intervention of the dean of the Faculty of Advocates and the president of the Law Society in Scotland to remind SNP ministers of their obligation to uphold the independence of the judiciary and to ‘reflect on the consequences of what are perceived to be repeated and now highly personal attacks on respected members of the legal profession’.
Since the Thatcher administration there have been well-founded anxieties about the traditional autonomy of the civil service, which came into focus during the Hutton inquiry’s exploration of the pressures on civil servants in the run-up to Blair’s intervention in Iraq. Matters are no better in Edinburgh. Page records that ‘the independence referendum raised concerns about the politicisation of the civil service.’ Salmond’s view was that, having been elected in 2011 on a manifesto which promised a referendum, his government was perfectly entitled to deploy civil service resources to the full in the pursuit of independence. Nevertheless, there was in the two years before the referendum a blurring of boundaries between legitimate and nakedly partisan expenditures, which, one way or another, obtained civil service approval. Although a unified UK civil service was envisaged at the outset of devolution as ‘part of the “glue” of the Union state’, there is now, according to Page, ‘a separate Scottish civil service in all but name’.
Scotland has a unicameral legislature, in deference to its pre-1707 single chamber parliament. The Additional Member system introduced for elections to the new Scottish Parliament was explicitly designed to produce coalition governments. Nobody anticipated that the SNP – in a feat of triangulation – would manage to become a majority single-party government, as happened at the Scottish election in 2011, and subsequently a doppelgänger of every Scottish political party. In his assessment of the post-2011 Scottish Parliament, Page invokes Lord Hailsham’s Tory critique of Labour’s ‘elective dictatorship’ at Westminster in the 1970s. The SNP government, he argues, has been using its majority to inhibit free discussion of its failings. Page sees ‘few signs of willingness to acknowledge much less address the underlying tensions between sustaining the Scottish government in power and holding it to account’. Scrutiny and accountability count for even less at Holyrood than at Westminster, which has at least a revising chamber – however flawed – in the House of Lords.
It wasn’t meant to turn out like this. Scotland’s shiny, new devolved Parliament was conceived during the Lib-Lab-dominated Constitutional Convention of the early 1990s as a beacon of modernity. It was intended to be ‘radically different from the rituals of Westminster: more participative, more creative, less needlessly confrontational’. Its committee system was meant to be the Scottish Parliament’s heart. Powerful committees would, it was envisaged, not only scrutinise and amend government measures, but would also have the power to initiate legislation. In a major departure from the Westminster model, Holyrood’s committees would ensure that backbench MSPs rather than the executive dominated the new legislature. Underpinning this pious hope was a myth: the notion that while the British constitution rested on the quasi-authoritarian sovereignty of Parliament, the Scottish constitutional tradition, derived ultimately from the Declaration of Arbroath, made in 1320 at the conclusion of the most important phase of the Scottish Wars of Independence, embodied the sovereignty of the people. The historical foundations of the claim are shaky, to say the least; and the Scottish Parliament hasn’t enjoyed the future that the idealistic architects of devolution once imagined. Holyrood is instead infected with the spirit of Westminster.
Page completed his book in 2014, with certain revisions to take account of post-referendum developments. In the interim, the issue of university reform has brought into focus the SNP’s contempt for arm’s-length principles. The Scottish universities are alarmed at SNP plans to remodel their governance by introducing a new definition of academic freedom and politicising elections to university courts. The reforms are couched in the rhetoric of transparency and accountability, but opponents claim this is merely a smokescreen for the party’s desire to take tighter control of higher education. Although 78 per cent of respondents opposed the proposals at the consultation stage, the SNP is pressing ahead.
The SNP is also agitating to have power over abortion law devolved to the Scottish Parliament. The rationale is that Holyrood is responsible for health, so it seems anomalous to maintain abortion as a reserved matter for the UK Parliament. This move is causing alarm in certain quarters, with Scottish Women’s Aid and other pressure groups fearing the result might be more stringent abortion laws north of the border. Of course, this move to transfer powers over abortion to Scotland might be perfectly innocent, a product of the SNP’s desire to hoard powers, even if it doesn’t intend to use them. But the situation of Northern Ireland, with its restrictive abortion laws, is hardly reassuring.
The UK’s constitutional future remains uncertain. Will the SNP campaign for a second independence referendum? Will the UK evolve into a federation of its constituent nations? How would an England which contains 85 per cent of the UK population fit into these federal arrangements? What will happen if the votes of Scotland and England diverge in the EU referendum? What will be the fates of Northern Ireland and Wales should Scotland break away from the United Kingdom? The media focus – understandably enough – is on the relationships of England, Scotland, Wales, Northern Ireland with the UK, and the way in which the European question impinges on the home nations. But it’s important not to lose sight of internal tensions within Scotland – or Wales or Northern Ireland, for that matter. The distinctions between party and state, and between the state and the institutions of civil society, are easily overlooked when existential questions – the very existence of the UK, the independence of Scotland – are at stake. But the assumption in recent years that the interests of the SNP are – by definition – identical to those of the Scottish nation as a whole induces a queasy feeling.