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4 The changing constitution in the British Isles
Summary
The nature of the constitution of the United Kingdom is changing. There have been historic developments in Wales and Northern Ireland, and the United Kingdom Government has published proposals to develop further the governance of the United Kingdom. Scotland, whether in the United Kingdom or independent, should continue to play a leading role with our neighbours, taking the opportunity to improve the mechanisms for joint working between governments across the current United Kingdom and with the Republic of Ireland.
Introduction
4.1 Significant changes to the constitution of the United Kingdom were begun in 1997 with the referendums for devolution in Scotland and Wales, followed by reform of the House of Lords, devolution and a directly elected mayor in London, and incorporation of the European Convention on Human Rights into domestic law. Recently there have been further, historic developments in the new Government of Wales Act 2006; the change in administration in the Welsh Assembly Government; and the re-establishment of the devolved assembly in Northern Ireland. The United Kingdom Government has now published a green paper, The Governance of Britain, proposing constitutional reform of the United Kingdom as a whole.
4.2 These developments indicate that the process of constitutional change begun in 1997 is continuing. Recent elections in Scotland, Wales and Northern Ireland have demonstrated public support for further consideration of the constitution of the United Kingdom, and the formation of new governments in all three devolved administrations has pointed to the need for formal mechanisms for governments to work together within the United Kingdom and with the Republic of Ireland.
The nature of the United Kingdom today
4.3 The United Kingdom now has three devolved administrations - in Scotland, Northern Ireland and Wales - each with different powers and responsibilities, and each with political parties or coalitions in government different from the United Kingdom Government, and from each other. There is also a directly elected assembly, and mayor, in London, although no other region of England has chosen to have a directly elected assembly.
4.4 The United Kingdom has not developed a traditional devolution or federal model, in which each of the constituent units of the state would have similar powers and responsibilities, with a single coherent set of powers vested in the state's central legislature and executive government. The approach in the United Kingdom, sometimes known as asymmetric devolution (an expression also applied to the Spanish system), recognises the different nature and history of each of the countries. However, it also leads to anomalies between regions and inconsistencies, the best known of which is the West Lothian question, which arises as there is legislative devolution in Scotland (a devolved assembly with the power to pass its own laws), but none specifically for England.
4.5 Developments in Northern Ireland and the new Government of Wales Act 2006, as well as the election result in Scotland, indicate that the trend in the United Kingdom is likely to be for greater devolution from the United Kingdom Government and United Kingdom Parliament to the devolved administrations. However, these developments have not yet been matched by any devolution in, or for, England.
4.6 A further consideration is the development of the European Union, in which sovereign states "pool" elements of their sovereignty for particular purposes, for example a single market. This analysis can also be applied to federal states, where constituent parts of the federation have agreed on the powers of the central government. This analysis has not generally been applied to the institutions of the United Kingdom, that is England, Scotland, Wales and Northern Ireland have not been regarded as pooling their sovereignty, on a continuing basis, to form the United Kingdom Government and Parliament. Instead, the process of decentralising powers and responsibility in the "incorporating union" which created the United Kingdom has been regarded, and described, as devolution. It might be that the concept of pooling sovereignty becomes more applicable as more responsibility is devolved within the United Kingdom, or if the United Kingdom were to develop as a looser association of states (and regions) on the islands of Britain and Ireland.
United Kingdom green paper - The Governance of Britain
4.7 On 3 July 2007, the United Kingdom Government published a green paper on the constitution of the United Kingdom, entitled The Governance of Britain. The paper has four aims:
- to invigorate democracy, increasing pride in participation at every level;
- to clarify the role of local and central government;
- to rebalance power between government and Parliament, giving the latter more power to hold the government to account; and
- to work with the British people to achieve a stronger sense of what it means to be British and to launch an inclusive debate on the future of the United Kingdom's constitution.
These are covered in four chapters:
- Limiting the power of the executive: this includes proposals to move prerogative powers to Parliament such as deploying troops overseas, ratifying treaties and dissolving Parliament;
- Making the executive more accountable: specifically in the areas of security and intelligence, and statistics and expenditure. This chapter also discusses the roles of the new Ministers for Regions;
- Re-invigorating democracy: this chapter discusses reform of the House of Lords and the House of Commons, direct democracy, and touches on devolution; and
- Britain's future: the citizen and the state, which explores national identity and developing a statement of British values.
4.8 Many of the areas covered in the paper are of direct concern to Scotland: some are in devolved areas, such as the exercise of the prerogative power of mercy; and some are reserved, but affect Scotland directly, such as the future of the civil service and reform of the House of Lords. The national debate on British values is also a proposal of direct concern to Scotland, although in Scotland this debate will also concern the values that contribute to a resurgent Scottish identity, as well as the British values which will be prominent elsewhere in the United Kingdom.
4.9 Other areas covered in the paper are mainly of concern to England and Wales, but have parallels in Scotland. These include the role of the Attorney General, the appointment of the judiciary, and the re-invigoration of local and national democracy. In many of these areas, Scotland has already moved forward from the position in England and Wales, and there might be valuable lessons that can be learnt by the United Kingdom Government from Scottish practice, for example in the handling of petitions in the Scottish Parliament, or the gathering of evidence from interested parties by Scottish Parliamentary Committees during the progress of Bills.
4.10 There are also proposals on the administration of the business of the United Kingdom Government, such as consultation on the Queen's Speech and annual parliamentary debates on the objectives of United Kingdom Government Departments. These could both provide useful models for Scottish Government practice and provide a mechanism for the Scottish Government to contribute to the United Kingdom Government's policy formulation in non-devolved areas which impact on Scotland.
4.11 The green paper does not discuss, from a United Kingdom point of view, the issues raised in this paper: further development of devolution to Scotland, or to other parts of the United Kingdom (for example, there is no discussion of the West Lothian question). The paper reasserts the current constitutional arrangements for the United Kingdom, and that the United Kingdom Parliament remains sovereign.
4.12 The Scottish Government will provide a detailed response to the United Kingdom Government on its proposals in due course. It will also be necessary to consider with the United Kingdom Government how to co-ordinate with, and contribute to, the national discussion it proposes to have on its green paper.
Joint Ministerial Committees
4.13 The results of elections across the devolved administrations this year have highlighted the need for sound formal mechanisms for the governments of the United Kingdom to work together. The arrangements for liaison were set out on devolution in the Memorandum of Understanding, at the apex of which sits the Joint Ministerial Committee. The Joint Ministerial Committee was intended to provide a forum for United Kingdom Ministers and devolved Ministers to discuss matters of mutual concern. The framework provides for a plenary format and a range of sub-committees.
4.14 In future the Joint Ministerial Committee could provide a vehicle for the co-ordination of policy work and formal consultation between Ministers and officials, complementing other contacts. The Scottish Government would propose to work with the United Kingdom Government and the other devolved administrations to place the Joint Ministerial Committee on a sound footing. This could include re-establishing the plenary format of the Joint Ministerial Committee, and considering the scope for a range of sub-committees to conduct more detailed work. The Joint Ministerial Committee could also ensure that the Memorandum of Understanding and bi-lateral concordats provide a sound framework for joint working within the United Kingdom.
British-Irish Council
4.15 There is scope for close working with the Republic of Ireland as well as within the United Kingdom. The British-Irish Council, as established in 1998 under the auspices of the Good Friday Agreement, already provides a forum for joint working across a range of areas, which currently includes transport, environment, demography, e-health, knowledge economy, tourism, social inclusion, misuse of drugs, and minority and lesser used languages. Scotland currently leads the demography work and jointly leads with Wales in the social inclusion strand, and has asked to lead a further sub-group on energy transmission. The supporting secretariat for the Council has recently been tasked to review and renew the work of the Council, and should report at a future summit meeting in late 2007 or early 2008. This may involve an expanded or revised work programme for the mutual benefit of member administrations.
4.16 The Scottish Government proposes to work with all members - the United Kingdom Government, the devolved administrations, the crown dependencies of the Isle of Man, Guernsey and Jersey and the Government of the Republic of Ireland - to ensure that the British-Irish Council is developed as a suitable forum for co-operation across the administrations of Britain and Ireland. An early opportunity for the Scottish Government to progress such development will come when it hosts a future British-Irish Council Summit during 2008.
4.17 The current arrangements bring together two sovereign states, three devolved nations and three crown dependencies to co-operate on issues of mutual concern. This could provide a model for future co-operation across Britain and Ireland following independence for Scotland, bringing together three sovereign states, including an independent Scotland, and the remainder of the United Kingdom, the devolved nations and island territories. This would provide a formal mechanism for the governments of Britain and Ireland to work together to complement other continuing relations across the islands in social and cultural fields, as well as a continuing Union of the Crowns.
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