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Monday, June 1, 1998 Published at 13:07 GMT 14:07 UK


UK Politics: Talking Politics

Scotland and Westminster



BBC Scotland's Political Editor Brian Taylor looks at the possible constiutional wrangles that may cause friction between London and Edinburgh.

Despite devolution, Westminster has retained its power over the Constitution.

It is feared by some Nationalists that this places a "concrete ceiling" upon their aspirations to transform devolution into ultimate independence as Westminster could veto any such move by a Scottish Parliament.

Certainly, the White Paper is very firm about the fact that this is devolution and not independence and that Scotland would remain part of the United Kingdom and that Westminster is sovereign.

It is also stressed in the back-up briefing that the Scottish Parliament could not opt to hold a referendum on whether to move to independence.

This would be beyond its powers because the future of the constitution is reserved to Westminster.

Self Determination


[ image: SNP leader Alex Salmond]
SNP leader Alex Salmond
That is the constitutional position. But perhaps there is also a political answer to this issue. Nationalists cite an informal agreement reached, they say, between Donald Dewar, the Scottish Secretary, and the SNP leader Alex Salmond in the run-up to the devolution referendum.

This is that the future governance of Scotland is for the Scottish people themselves to determine.

If the Nationalists gain a clear majority in the Scottish Parliament, then there would be a drive for the process of independence negotiations between Scotland and London to begin, regardless of Westminster's perspective or previous Westminster statute.

If they do not gain that majority, then the issue does not arise.

Capital Questions

Then what about possible conflict between the Scottish and Westminster Parliaments over legislation?

It is argued - again by those sceptical or hostile to change - that tension between the two Parliaments would create instability, perhaps posing a question mark over the future of the Union. Legislative conflict, it is claimed, would be an element of that.

The government's plan specifies that there should be pre-legislative checks in Scotland to ensure that the planned new Parliament is not acting beyond its remit.

There would be a pause after Scottish Parliamentary legislation to allow the UK Parliament to ensure that their territory is not being breached. Any disputes would be tackled by the Judicial Committee of the Privy Council, consisting of at least five Law Lords.

What role for the Secretary of State?

Another key question is what would happen to the office of Secretary for State for Scotland.

The White Paper envisages that this individual would remain a member of the UK government to liase between Scotland and Westminster - and to look after Scottish interests within fields such as defence which remain under London control.

But - with the Scottish Office civil service broadly transferred to the new Parliament - there are already question marks over this arrangement.

The Liberal Democrats have said that they see no role for the Scottish Secretary - and even some Labour figures are prepared to concede privately that the continuation of the office may prove an interim arrangement to allow the new Parliament to bed down.

At present, the Scottish Secretary is a member of the United Kingdom Cabinet - treading a line between acting as Scotland's person in the Cabinet and the Cabinet's person in Scotland.

What the Bill says

The Bill is legislatively precise: defining tasks which will require to be undertaken post-devolution by "the Secretary of State" without defining that that individual requires to be the Scottish Secretary of State. This could mean technically any member of HM Government at Westminster holding such rank.

It is envisaged that the Secretary of State will provide liaison between Edinburgh and London and will have the power to challenge Scottish legislation if it is felt that the planned reforms breach Britain's international treaty obligations or tread into areas reserved to Westminster.

Any disputes which could not be tackled by negotiation would be resolved as outlined above by the Judicial Committee of the Privy Council. Westminster would appoint an Advocate General to advise the UK Government on the Scottish legal system.

This individual would have the power of reference to the Judicial Committee which comprises law lords from both Scotland and England. A similar power of reference would be available to the Scottish law officers, the Lord Advocate and the Solicitor General.

Supervisor or advocate?

The question marks over the office of Scottish Secretary fall into two categories.

Maximum devolutionists will question why there should be a supervisory role for such an individual. They will jib at the potential interference involved. Donald Dewar says he does not envisage conflict.

Minimum devolutionists - who harbour continuing fears that the Union with England may still be under threat - complain that the office of Secretary of State for Scotland is not precisely defined: that Scotland may end up losing its individual voice within the UK Cabinet where key decisions will continue to be taken.

Donald Dewar stresses that it is not for Scottish devolution legislation to prescribe actions by a future UK Prime Minister: that it is a matter for the PM to determine the shape of his/her Cabinet, to decide whether a Secretary of State for Scotland is needed.

A new Cabinet office?

The Tories - lacking MPs in either Scotland or Wales - already combine the shadow roles for these areas within a wider constitutional brief.

It might be feasible that relations between Westminster and Scotland/Wales/English regions could in future be handled by a single Cabinet office.

The underlying issue here - as with other questions - is political rather than legislative.

If you think the devolution settlement will broadly work, then you believe that an atmosphere of trust and consensus will develop which will allow such questions to be resolved.

If you harbour doubts, then perhaps you probe these issues more precisely.



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