Law Society: permanency of Scottish Parliament a political declaration rather than a matter of law

One of the central recommendations of the Smith Commission on Devolution (paragraph 21) was for new legislation to make the Scottish parliament and Scottish government permanent institutions.

The UK government has since published draft legislative clauses to implement the Smith Agreement. Responding to the public consultation, the Law Society highlighted how difficult it is to enshrine the permanency of the parliament in law, given the nature of the UK’s unwritten constitution.

Alistair Morris, president of the Law Society said: “Against a challenging timetable, the UK government has clearly worked hard to bring forward this draft legislation and to maintain the momentum from the Smith Commission.

“The Smith Commission’s clear recommendation to make the Scottish parliament and Scottish government permanent institutions is probably one of the most challenging to deliver, at least in terms of legislation.

“After all, the UK’s unwritten constitution means one parliament cannot bind a future or successor parliament.

“Whilst the political will is clear, the current wording within the proposed legislation would still allow a future UK parliament to repeal the original act which established the Scottish parliament and Scottish government.

“As such, the current clauses represent more of a political declaration than any matter of law.

“If the UK government wants to make the Scottish parliament and Scottish government legally permanent then further work will have to be undertaken and some alternative wording considered.

“Indeed, the concept of the sovereignty of the UK parliament may, at least in legal terms, put a limit on the ability to deliver the intentions of the Smith Commission in this area.”