Ahead of Scottish Labour conference, Aidan Skinner sets out a blueprint for a form of federalism which could provide the structures and opportunity to enable Scotland and the UK to re-engage with the world.
The current position is that the United Kingdom parliament is sovereign and allows the Scottish Parliament to legislate in Scotland except on the matters listed in Schedule 5 of the Scotland Act.
Donald Dewar’s approach of reserving specific matters to Westminster has had some unintended consequences: famously regarding Arctic policy and now, due to the disaster of Brexit, agricultural policy, fishing and other areas previously managed by the European Parliament.
The UK Parliaments general power to legislate Scottish law leaves open the possibility that the Scottish Parliament’s functions could be changed, and in an extreme case it could abolished entirely, by the UK Parliament without the Scottish Parliament’s consent. Although this is politically unlikely, any federal settlement would need to secure the Scottish Parliament as a permanent feature of the UK constitution.
One way of achieving this would be to alter the relationship to one of sovereign Parliaments negotiating their areas of competence, either exclusively or shared.
Rather than devolving power from a sovereign UK Parliament, the Scottish people could pool their sovereignty with other citizens in the UK Parliament through the Scottish Parliament. This would acknowledge that the people of Scotland have given their explicit consent to both the Scottish and UK Parliaments through referendums in 1997 and 2014 respectively.
On that basis the procedures governing the relationship between the Scottish and UK Parliaments, such as Legislative Consent Motions, could be placed onto a legal basis similar to Section 30 orders.
This shift in relationship could achieved by two changes to the Scotland Act. The first is to specify that the ability of the Parliament of the United Kingdom to make laws for Scotland is limited to those areas in Schedule 5 unless the Scottish Parliament passes a Legislative Consent Motion.
The second is to specify that the Scotland Act itself can only be modified by an Act of both the UK and Scottish Parliaments.
Neither change would need to alter the current competences of either Parliament. Diceyan constitutionalists would object on theoretical grounds but it’s past time that view was consigned to the dusty history books it came from.
These changes would only be part of a shift to a federal UK.
We have already developed quasi-federal bodies such as the UK Supreme Court and the Equality and Human Rights Commission. Taking this process further would be a crucial part of this program.
The Bank of England is ripe for federalisation. Currency is a crucial issue in the debate about partitioning Scotland from the rest of the UK. Renaming it to the Bank of the UK would be a symbolic step. More significant would be requiring approval of the Northern Irish, Scottish and Welsh governments to appoint the Governor, or to change the inflation targeting mandate under which it operates.
Part of this shift should also be a recognition that the Scottish Parliament does have a right to decide to separate from the UK. Government without consent is no government at all. As constitutional changes are a significant event I’d suggest we follow the lead of many Other Normal Nations® and require a qualified majority of two thirds to trigger another referendum. It may be our right, but we have other things to do.
The UK is a unique country with common problems: we must recognise our imperial past, rebuild our political systems to tackle the threat from domestic disillusionment and external manipulation, and reduce our impact on the environment to tackle the existential threat of climate change.
A federal UK could provide the structures and opportunity to take the radical steps necessary to re-engage with a world we’re drawing back from at a time when we can’t afford, and have no right, to do so.
Constitutional fiddling may seem to many like an indulgence, especially at this moment. But it is something we can’t afford to hold back from or delay. It’s a necessary part of the journey to a world which serves the many, not the few.