A bridge over troubled (constitutional) water?

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With the First Minister’s statement on 24 April 2019, the constitutional questions which have been, to some extent, in Brexit’s shadow, were cast firmly back into the spotlight.

Brexit has gone straight to the heart of the devolution settlement. It has brought the Sewel Convention into question; has necessitated new protocols to deal with the secondary legislation resulting from the EU Withdrawal Act 2018, and has brought intergovernmental and interparliamentary relations to the fore.

In her statement, the First Minister outlined the Scottish Government’s proposed approach to the constitutional waters which lie ahead.

This blog will consider the three areas outlined in the statement.

What did the First Minister say?

There were three key announcements in the statement:

Cross party talks on constitutional and procedural change

The most recent example of such cross-party talks was the Smith Commission, established in the wake of the independence referendum in 2014.

The Commission’s purpose was “to convene cross-party talks and facilitate an inclusive engagement process across Scotland to produce… recommendations for further devolution of powers to the Scottish Parliament”.

The First Minister’s invitation to the parties at Holyrood to attend cross party talks to find areas of agreement on constitutional and procedural change has a similar feel to it.

There is some disagreement amongst the parties represented at Holyrood on the scope and shape of further powers for the Scottish Parliament.

The SNP has, for example, as far back as 2015, called for powers over the minimum wage, business tax and national insurance, whilst the Scottish Greens have backed the devolution of corporation tax.

More recently, the Scottish Government has repeated its call for the Scottish Parliament to be given powers over immigration so that Scotland can have a system which supports its specific demographic and economic needs. On 22 February 2018, that call was supported by Labour and the Greens in a vote in the Parliament.

The Scottish Government has also called for an enhanced role in the development of future trade policy and the preparation, negotiation, agreement, ratification and implementation of future trade deals.

Labour has recently called for the devolution of employment law, with the Liberal Democrats and Conservatives quieter on the issue of further powers in this parliamentary session.

A framework bill

The First Minister’s statement made clear her desire to see a second independence referendum before the next Scottish Parliament elections due in 2021. The UK Government’s continued position is that it would refuse any request for a Section 30 Order.

Schedule 5 of the Scotland Act 1998 sets out matters which are reserved to the UK Parliament, including the Union of the Kingdoms of Scotland and England. Schedule 5 can be amended to give the Scottish Parliament the power to hold an independence referendum. To do this, an order under Section 30 of the Scotland Act is required. Section 30(2) of the Scotland Act 1998 provides that:

“Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.”

The 2014 independence referendum was held after the UK and Scottish governments concluded the Edinburgh Agreement on 15 October 2012. A Section 30 Order was confirmed by the UK Parliament in January 2013. The Scottish Independence Referendum (Franchise) Bill was subsequently introduced in March 2013.

On 31 March 2017, the First Minister wrote to the Prime Minister to request a Section 30 Order. The request was refused by Mrs May on the basis that “Now is not the time” for a second referendum on Scottish independence.

Last week’s statement confirmed that the Scottish Government will not, at this time, seek a Section 30 Order which would give the Scottish Parliament the power to hold such a referendum.

The Scottish Government will introduce in Parliament primary legislation to set out the rules of any future referendum within the competence of the Parliament. If passed, this legislation may save time should a Section 30 Order be granted in the future.

What the First Minister made clear was her determination to hold any referendum on a strictly constitutional basis – i.e. through a Section 30 Order – rather than holding an indicative vote. She said:

“We do not need a transfer of power such as a section 30 order to pass such a framework bill, though we would need it to put beyond doubt or challenge our ability to apply the bill to an independence referendum.”

It is anticipated that a bill will be introduced in the Scottish Parliament ahead of the summer recess.

Citizens’ assemblies

The First Minister announced that a Scottish citizens’ assembly will be brought together to consider three questions:

  • What kind of country are we seeking to build?
  • How can we best overcome the challenges that we face, including those arising from Brexit?
  • What further work should be carried out to give people the detail that they need to make informed choices about the future of the country?

These are complex and emotive questions, but there is precedent for citizens’ assemblies being helpful in moving debate forward.

In Ireland, a citizens’ assembly considered abortion, amongst other issues like fixed term parliaments and climate change.

In British Columbia, a citizens’ assembly considered electoral reform in 2004. A citizens’ assembly in Ontario in 2007 also considered electoral reform, as did a Dutch assembly in 2006.

Last year a citizens’ assembly met in England to consider how adult social care should be funded.  Former Prime Minister Gordon Brown has also suggested a citizens’ assembly should be formed to find a solution to the Brexit impasse.

A citizens’ assembly aims to bring together a group of people who are broadly representative of the electorate. This means taking into account characteristics like gender, age, social class and where people live.

An assembly meets to deliberate an issue or issues which may be of national or local importance. Generally, an assembly is set a clear task and follows a three-stage process.

Participants learn about the subject they are to consider and then move into a dialogue phase where they explore their opinions and those of their fellow citizens. The final stage is one of deliberation where the assembly come to some conclusions – whether by a vote or through another decision-making process.

The terms of Scotland’s citizens’ assembly have yet to be set, but those selected to join it will have an important say in Scotland’s future.

Sarah Atherton, Senior Researcher, Parliament and Constitution