The Smith Commission, the body tasked with recommending reforms to the governance of Scotland recently released its final report. Democratic Audit asked Scottish constitutional and political experts John Curtice, Katie Boyle and Stephen Tierney, and Sionaidh Douglas-Scott to respond. (Part 1 can be found here

Boyle, Katie

Curtice, John

Douglas-Scott, Sionaidh

Tierney, Stephen

LSE Research Online

democraticaudit.com http://www.democraticaudit.com/?p=9578By Democratic Audit UKThe vow delivered? Experts respond to the publication of theSmith Commission’s recommendationsThe Smith Commission, the body tasked with recommending reforms to the governance of Scotland recentlyreleased its final report. Democratic Audit asked Scottish constitutional and political experts John Curtice, KatieBoyle and Stephen Tierney, and Sionaidh Douglas-Scott to respond. (Part 1 can be found here). John Curtice, Professor of Politics, Strathclyde University The Smith Commission was, of course, the product of concern in the No camp thatthe referendum vote might be lost.  By offering Scotland a firm promise of moreautonomy within the framework of the UK, it was hoped voters would be persuadedthey did not need to leave the UK after all.But now that Smith has been unveiled, will voters be satisfied that they are in fact being offered theautonomy that they want?At first glance this looks unlikely to be the case. Most polls find that a majority of Scots think thatmore or less every single aspect of their domestic affairs, including taxation and welfare benefits,should be handled in Holyrood, not London. Smith, in contrast, is simply proposing further partialdevolution of tax and some seemingly limited devolution of welfare.But there is also another side to public opinion north of the border. Voters are relatively disinclinedto embrace the idea that income tax rates in Scotland might be different from those in England,while they certainly do not like the idea that the state pension might be different.Equally, a clear majority believe that major welfare payments such as pensions and unemploymentbenefit should be paid for out of UK-wide taxes, not just out of revenues raised in Scotland.In short, while Scots like the idea of Holyrood making its own decisions, at the moment at leastthey are less keen on some of the potential implications of more devolution.Smith will give Scots an opportunity to see whether or not they can in fact live with theconsequences of being responsible for their own affairs. If they find that they can, then doubtlessthere will be a demand that yet more tax and welfare be devolved. If not, then maybe thisundoubted compromise will indeed come to be regarded as giving Scotland the ‘best of bothworlds’. Katie Boyle, Postdoctoral Research Fellow at theUniversity of Roehampton & Stephen Tierney, Professorof Constitutional Theory at the University of EdinburghTwelve months ago we predicted that Scotland would facesignificant constitutional change regardless of the outcome ofthe referendum. We also highlighted the critical importance ofprocess as well as substance in the post-referendumlandscape. We referenced principles of deliberative democracy and emphasised that anyconstitutional change should be predicated with a deliberative process that ensures constitutionalchange is formulated in an open, deliberative and reflective environment. This is based on theprinciple that legitimacy of the process engenders legitimacy in the outcome. The remit of theSmith Commission was to “to convene cross-party talks and facilitate an inclusive engagementprocess across Scotland” with a view to delivering “more financial, welfare and taxation powers,strengthening the Scottish Parliament within the United Kingdom”.The Report of the Smith Commission is based on a process that sought views from civic Scotlandthrough consultation and brought together political parties to formulate agreed positions on thefuture of Scotland. Essentially it is the party political consensus which the Smith CommissionReport comprises. It is not clear from the report to what extent the views of civic Scotland or theelectorate actually informed the cross-party political negotiations in practice. This means theprocess and outcome of the Smith Commission relies on an elite-driven exercise in deliberationwithout any guaranteed mechanisms to ensure genuine inclusive engagement with civic society.It has not helped that the short period during which these proposals were put together coincideswith a highly-contested pre-election political environment. It was never going to be easy to ensurebroad consensus of the Scottish electorate, nor to arrive at a package to be implemented byWestminster. But the result is policy-led constitutional change rather than a full exercise in duediligence to test the feasibility and popularity of the different proposals through proper deliberationand engagement with the electorate.It also means that the powers and responsibilities recommended for further devolution do notnecessarily enjoy the support of the majority of the people of Scotland; indeed it is not at all clearthat people understand what is happening nor the possible ramifications of the proposed changes.For example, there are clearly significant changes proposed to the current operation of the BarnettFormula – in this light, the extension of powers relating to welfare provision and limited tax raisingpowers will require close scrutiny. These proposals should be treated as such allowing for agenuinely inclusive and transparent exercise in public engagement before any legislation ishastened through Parliament. Sionaidh Douglas-Scott, Professor of European and Human Rights law,University of OxfordThe Smith report recommends that ‘UK legislation will state that the ScottishParliament and Scottish Government are permanent institutions.’Constitutional conservatives will not like this. Clearly, this recommendation isintended to allay fears that the Scottish Parliament could be abolished by UK legislation, as wasthe Greater London Council abolished by Margaret Thatcher. According to traditional theories ofparliamentary sovereignty, the UK Parliament has the legal authority to enact, amend or repeal anylaw, and no other body has the legal authority to stop it so doing. Therefore, according to orthodoxtheory, attempts to create a permanent Scottish Parliament by UK statute would not bind future UKparliaments, which could simply repeal it.Yet current constitutional developments (including judge created constitutional values, as well asthe evolution of the British constitution under the influence of EU and human rights law, anddevolution itself) suggest that the British Constitution may no longer be read in this simplistic way.So if Westminster legislation is adopted declaring the Scottish Parliament permanent, then for allintents and purpose it will be so. Significantly, the Smith report also describes its aim of anenhanced devolutionary settlement as, ‘Reflecting the sovereign right of the people of Scotland todetermine the form of government best suited to their needs.’ Contrast this to s28 Scotland Act1998, which specifically declares the continued power of the UK Parliament to legislate forScotland, thereby upholding the concept of Westminster’s absolute parliamentary sovereignty. Butthe Smith report seems to suggest that the Scottish Parliament enjoys sovereignty directly from theScottish people (recalling long standing theories of Scottish popular sovereignty) and not just asdelegated by Westminster.Other significant constitutional consequences follow from Scotland’s relationship with the EU. EUlaw concerns many significant areas of devolved competence, such as family, criminal, successionand procedural laws, which can differ considerably from English law on the same subject.However, the Smith report recognises that ‘foreign affairs will remain a reserved matter.’ But it alsonotes that the implementation of the current Concordat on the Co-ordination of EU Policy Issues‘should be improved,’ proposing that Scottish Ministers are fully involved in agreeing the UKposition in EU negotiations relating to devolved policy.This is a long way from the Scottish Government’s submission to Smith, which sought guaranteedrights for Scotland to engage directly with EU institutions in devolved areas; a statutory mechanismto enable Scotland to develop, influence and represent UK policy on broader EU matters such astreaty change; and that Scotland have competence to negotiate and ratify international agreementsrelating to devolved matters. Some such practices already exist in EU member states such asBelgium, Germany and Spain. The Scottish Government also submitted that the EU CoordinationConcordats be put on a statutory footing.In contrast, the Smith Commission is much more cautious. Part of the problem, as it recognises, is‘the need to reflect fully the views of the other devolved administrations when drawing up anyrevised governance arrangements in relation to Scottish Government representation of the UK tothe EU.’However, the EU is a controversial area and continuing developments may bring these matters toa point of constitutional crisis. The system of opt-ins under EU Treaties has already createdproblems for devolved administrations, such as the recent decision by the UK Government to opt-out of criminal law and procedure aspects of EU law. More serious still could be the consequencesof the Conservative party’s policy of holding an in-out EU referendum. The Scottish Governmenthas requested its own referendum on this subject. The Smith report makes no provision for this.Should the UK vote as a whole to leave the EU, without Scotland being given a chance to hold itsown referendum, the constitutional consequences could be severe. The UK is not a homogeneousnation, but composed of four different nations, so a simple majority in an EU exit referendum couldbe seen as inadequate. This raises the issue of national minorities and their protection, as well asthe federal question, both largely ignored by the Smith report.—Note: this piece represents the views of the contributors and not those of Democratic Audit UK or the LSE. Pleaseread our comments policy before posting. Feature image credit: Kevin Gibbons, CC BY 2.0

The vow delivered? Experts respond to the publication of theSmith Commission’s recommendations

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