Scotland politics

Power to the parliament

Scottish Parliament building
Image caption The Supreme Court said Holyrood had legislated properly on its Damages Bill

Two intriguing commentaries today, anent the powers of the Scottish Parliament, present and potential.

Firstly, analysis contained within the judgement by Lord Hope of the UK Supreme Court in ruling that the Scottish Parliament was justified in legislating in an effort to assist those affected by pleural plaques.

Secondly, the decision by the Scottish Affairs Select Committee in the Commons to hold an inquiry into the mechanics of a potential referendum upon what it chooses to call "Separation for Scotland".

The judicial ruling first.

Here, I am not concerned with the judgement itself - which is substantively covered elsewhere - but with the comments by Lord Hope upon the role of the judiciary in relation to an elected Parliament, notably one with a single-party majority.

There is background here: firstly, the prolonged debate about the general constitutional relationship between the courts and an elected legislature and, secondly, the heated dispute over the particular role of the UK Supreme Court with regard to Holyrood.

Having traced history over the broad issue, Lord Hope notes that it does not arise in practice with regard to the devolved Scottish Parliament as it is not itself sovereign, being a creature of Westminster.

However, he goes further. Reflecting back upon Lord Hailsham's warning about an "elective dictatorship", he looks at the impact of majority government in Scotland.

Let me quote his comments in full: "We now have in Scotland a government which enjoys a large majority in the Scottish Parliament.

"Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised.

"It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual.

"Whether this is likely to happen is not the point.

"It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise."

Lord Hope's wider point had been that it was for the judges to act on behalf of the potentially wronged individual, while parliamentary concern was with the wider interests of the nation.

Set aside, for now, whether elected politicians would accept that distinction. (They would not.) Consider his wider point.

It is, I think, fairly plain that Lord Hope is reasserting the role of the judiciary, including his own court, within the wider machinery of governance and the law - albeit in the context of an individual judgement which has been welcomed by the present Scottish government.

Secondly, that investigation by the Scottish Select Committee at Westminster.

Among sundry matters, they intend to look at "which jurisdiction should conduct" a referendum and how it should be initiated.

The very fact of this inquiry reminds us of one salient point: that the constitution is reserved to Westminster within the Scotland Act which established the Scottish Parliament with its subordinate status, as expounded in precise terms by Lord Hope.

Tory absence

That means that the Scottish Select at Westminster has the locus to investigate this issue.

Equally, against that, the Scottish government will undoubtedly argue that the authentic mandate to hold such a ballot lies with them, given their majority victory in May.

Scottish Ministers may point ironically to the membership of the Commons committee which contains four Conservatives from English constituencies in the absence of Scottish Tory backbenchers.

But there is a more fundamental issue here. Who will, ultimately, call the referendum?

Deputy Prime Minister Nick Clegg has been fulminating against Alex Salmond, suggesting that he is playing a game of "cat and mouse" with the voters by declining to hold the referendum swiftly.

As Mr Clegg fully realises, this opens again the question of why he and his UK government do not hold such a referendum themselves, deploying reserved powers.

The answer? They fear they might lose.

Economic uncertainty

They fear that pre-empting Mr Salmond's planned plebiscite might risk a backlash from the Scottish voters who might be tempted to deliver a raspberry to a question asked by a Conservative Prime Minister.

But the option remains open, particularly if UK ministers (and their Labour opponents) continue to find the Scottish government plans to be unpalatable, especially with regard to an alternative option of enhanced powers for Holyrood rather than just a straight Yes or No to independence.

At the same time, one might also infer that Mr Salmond's instincts tell him that a time of intense economic uncertainty might not be the most suitable point at which to suggest radical constitutional change.

Hence, partly, the proposed timescale.

Not sure that the Westminster inquiry will deal with such subtleties of political and constitutional calculation.

But they are there, nonetheless, in this fascinating and wide-ranging argument over the scope of Scottish governance.