 | 'What of the MPs who currently represent Scottish constituencies at Westminster? How will they spend their time after a Scottish parliament has been established? It may not have dawned on some of them, but they will find that they do not have very much to do.' Peter MacMahon, in the Scotsman, 24 th July 1997. |  |
IS IT a slippery slope or a glass ceiling? Chose your clichè - is devolution a relentless slide to separatism; or are the parliament's powers so tightly capped by mother Westminster that it becomes little more than a parish council?
Well, Tony Blair's unfortunate asides notwithstanding, it is clear from yesterday's white paper that, whatever else it is, this Scottish parliament will not be a mere unit of local government. It will have real powers, and the power to extend them.
However, the white paper is ambiguous on the central constitutional conundrum - sovereignty. Where does it reside: in Westminster with Tony Blair; in Edinburgh with the Scottish people; or somewhere in between - stuck, perhaps, in a contraflow on the M6 somewhere north of Shap?
This may seem an academic question. Indeed, it is academic to the extent that sovereignty is an abstraction rather than something you can pin down and locate.
But it is an issue that has vexed home rulers for a century, and the continuation of the Union could depend on a satisfactory location of it.
In the unitary British state, sovereignty - essentially the right to rule - is presumed to reside in Westminster.
That's how the British constitution textbooks put it. How then can you give self- determination to a nation within the UK, such as Scotland?
Ever since the question of Scottish self-determination emerged on the back of Irish home rule in the 1880s, there has been a profound dispute about the extent to which this power to make law can be divided, devolved, repatriated or retained.
"The UK parliament is, and will remain, sovereign in all matters," says the white paper.
Well, that seems clear enough. "But," it goes on, "as part of the Government's resolve to modernise the British constitution, Westminster will be choosing to exercise that sovereignty by devolving legislative responsibilities to a Scottish parliament without in any way diminishing its own powers."
On the face of it, that is a contradiction, a constitutional howler. How can the UK parliament give legislative responsibility to another institution without diminishing its own powers?
If it is ceding the right to rule in a whole range of areas to another elected authority, how can its monopoly of sovereignty remain intact and undiminished?
The answer, of course, is that it cannot. As soon as a Scottish parliament is set up, it will behave as a separate constitutional entity as far as domestic affairs are concerned. It is a kind of de facto federalism. Federalism is the system in countries like the United States and Canada, where powers are strictly divided and defined between different levels. Sovereignty is distributed among them, rather than hoarded at the centre.
Is this what Labour intends? Not quite. "The sovereignty of the United Kingdom parliament will remain undiminished," said Tony Blair in the house [and more contentiously to this newspaper: "Sovereignty resides with me as an English MP"]. Well, we have to make allowances for the Labour leader. He's never really been a constitutionalist. But Donald Dewar is, and so is the leader of the SNP, Alex Salmond.
One of the untold stories of recent devolutionary politics is the complex dialogue they have been conducting on the question of sovereignty and how they have stretched the concept in order to forge a new Scottish political consensus.
Since becoming leader, Mr Salmond has been eager to get on board the broad movement for home rule, recognising that the SNP's boycott of the Scottish Constitutional Convention in the late 1980s was a mistake.
However, having only recently weaned his party away from Albanian separatism and back to constitutional gradualism, he had to secure a form of words which would leave devolution open-ended.
Any "glass ceiling", any explicit limit on the Scottish parliament's freedom to evolve into independence, would create a fundamentalist backlash in the SNP.
Mr Dewar is no Nationalist, at least not with a capital "N". But nor is he a pedantic Unionist. He used to describe his Scottish policy as "independence in the UK". Not many people remember that. Nor do they remember the pledge he signed - along with all but one of the Scottish Labour group - that "we gathered as the Scottish Constitutional Convention do hereby acknowledge the sovereign right of the people of Scotland to determine the form of government best suited to their needs."
Now that's the kind of thing that has English Cabinet ministers, such as the home secretary Jack Straw, reaching for their muskets. Mr Straw insisted that a form of words had to be used that affirmed Westminster hegemony - hence the talk in the statement accompanying the document that "Scotland will not be able to walk out of the UK" or change its constitutional status.
That might look like a glass ceiling and in a sense it is. But Mr Dewar saw it coming and found a way to avoid constitutional deadlock. As he told Alex Salmond again yesterday, in practice it would be "futile" to oppose the will of the Scottish people.
He made clear last month, that he would not stand in the way of the SNP using the parliament as a forum in which to promote independence.
There's more. The white paper makes clear that there is no formal cap on the powers of the parliament "the boundary between reserved and devolved powers may be adjusted as the need arises" . It is remarkable that Dewar has got this one past the constitutional guardians. Just as he got away with not specifying the powers that will be devolved to Scotland, as was the case in the 1978 act.
When English Labour MPs find the time to read the white paper, they may conclude that the Braveheartish spirit of the document was not quite suppressed by Jack Straw.
The only way to read this document is as a radical constitutional innovation.
Power devolved is not power retained. Westminster is the ultimate authority only as a formality - like the Queen being head of state. After this, sovereignty will never be the same again.
Return to home page