CHAPTER 9 A MODERN SCOTLAND
9.1 Devolution has given Scotland a modern democratic Parliament, open and accessible to the people, and elected on a proportional basis. Coalition and minority governments have held office successfully, demonstrating the adaptability of the Scottish political parties to new ways of working together and governing.
9.2 The Scottish Parliament and Government have taken a range of decisions that have affected each and every citizen of Scotland, and have demonstrated that Scotland can govern itself effectively. The Scottish Parliament and the Scottish Government have both become central parts of Scottish life. People in Scotland routinely trust these institutions more than their Westminster counterparts, and look to them to make the decisions which affect Scotland. 128
9.3 Democracy in Scotland is underpinned by key principles such as power sharing and participation, which make Scottish governance distinct from the rest of the United Kingdom. The Scottish Parliament provides genuine access for the people, through the legislative process and the Petitions Committee, which make the Parliament responsive, and helps maintain accountability. The Scottish Government has pioneered innovative consultation on significant policy making. Both have demonstrated a commitment to engaging with the whole of Scotland by taking parliamentary committees and the Scottish Cabinet out of Edinburgh and around the country.
9.4 These features of today's Scotland indicate the direction for an independent Scotland: a modern country where the democratic process provides transparency and accountability. Independence for Scotland would bring these advantages to the whole range of government activity, including all the key issues currently dealt with by the United Kingdom Parliament and Government in their traditional way.
9.5 Responsibility for decision making within Scotland is shared between central and local government based on mutual esteem and respect. Scotland should encourage a culture of responsibility and independence at all levels, with decisions being taken at the right level to reflect specific local needs, as well as those of the nation as a whole.
CONSTITUTION AND GOVERNMENT
The founding principles of the Scottish Parliament
9.6 Those establishing the Scottish Parliament deliberately set out to build a modern system of governance, particularly compared to the United Kingdom. A Consultative Steering Group was set up to consider how the Scottish Parliament would operate, 129 and indentified founding principles to govern the relationship between people, parliament and the state in Scotland:
- power sharing
- access and participation
- equal opportunity
9.7 The Scottish Parliament has successfully put into practice the principles on which it was founded:
- the petitions system makes the Parliament accessible and improves accountability
- the legislative process gives civil society and individuals significant opportunities to participate before and during the formal Parliamentary processes
- both parliamentary committees and the Scottish Cabinet take the process of government to all parts of the country
- participation and engagement is built into work of government, parliament, local government and wider public sector
9.8 The electoral system has also played an important role in opening up government in Scotland and in sharing responsibility between the executive branch and the Parliament itself. The proportional voting system has ensured that the Scottish Parliament more closely reflects the views of the people of Scotland, and that parties have had to form Parliamentary majorities in new ways, either through coalition or through issue-by-issue negotiations by a minority government. These advantages have now been introduced to local government in Scotland.
9.9 Aspects of the constitution, including the United Kingdom Parliament and the Union of the Kingdoms of Scotland and England, are reserved to the United Kingdom institutions by the Scotland Act. The system of government that has been successfully built up over the last ten years is, therefore, subject to amendment - or even abolition - by the United Kingdom Parliament.
9.10 Also reserved are fundamental laws which underlie the existence and actions of the Scottish Parliament and the Government, most obviously most of the Scotland Act and the legal mechanisms for safeguarding human rights in Scotland. These can also be altered by the United Kingdom to affect the competence of the Scottish Parliament. For example, the Scottish Parliament cannot legislate in a way incompatible with human rights. However, while the United Kingdom Government can be expected to comply with its international obligations, legally the United Kingdom Parliament could amend the mechanisms for protecting human rights, altering the fundamental relationship between the legislature and the citizen. There are some safeguards, in that the Scottish Parliament itself should be consulted and agree to any variation in its responsibilities. However, this is a constitutional convention, not a rule of law, and relies on the United Kingdom Parliament exercising self-restraint in its use of its responsibilities.
9.11 Legislation regarding local government is already largely devolved to Scotland. Scottish Ministers are elected to set the direction of policy and the over-arching outcomes that the public sector in Scotland is expected to achieve. Local government has responsibility to develop services which deliver outcomes in ways that reflect local priorities. The Scottish approach to local government is based on mutual respect and partnership, based on key principles:
- central and local government are equal partners at the centre of governance in Scotland
- local authorities are democratically constituted bodies with autonomy to deliver in the best way that they see fit for their local communities
- central and local government should work together to develop policy and agree the financial settlement associated with delivery of policy priorities
Constitutional recommendations of the Commission on Scottish Devolution
9.12 One recommendation of the Commission is that the Scottish Parliament could be permitted by the United Kingdom Parliament to legislate on a one-off basis in relation to reserved matters. This mechanism might improve the efficiency of the legislative process when Scottish legislation involves reserved matters. At present, reserved issues have to be dealt with separately by means of an order in the United Kingdom Parliament. There are potential advantages in being able to include such provisions directly in Acts of the Scottish Parliament.
9.13 However, the Commission does not develop this concept fully. A more useful proposal would be that the Scottish Parliament decides when it should acquire competence over an issue, recognising its position as the elected national assembly of Scotland. This would follow the model of the 1931 Statute of Westminster for the Dominions, such as Canada and Australia.
9.14 Full devolution of constitutional affairs would mean that the Scottish Parliament was responsible for all of its procedures and its own competence. The Parliament could therefore adjust its electoral system, or its membership, or its statutory Committee structure. Perhaps more importantly, it could decide to acquire competence over issues currently reserved to Westminster. This could be either a unilateral process, or the United Kingdom Parliament could agree to proposals, similar to the system under the Government of Wales Act 2006. With full devolution Scotland could have its own civil service, similar to Northern Ireland.
9.15 Full devolution on this model would recognise the position of the Scottish Parliament as the elected, democratic voice of a sovereign Scottish people, enabled to determine the best form of government for the nation. It might be that certain amendments to the responsibilities of the Parliament, for example on foreign affairs, require negotiation and agreement with the United Kingdom. A significant package might need or benefit from the direct agreement of the people in a referendum.
9.16 Recognising the sovereignty of the Scottish people with a devolved Parliament which can alter the settlement itself would be compatible with Scotland remaining within the United Kingdom. Sovereignty would only lead to independence if the people of Scotland wish.
9.17 An independent Scotland would be responsible for its entire constitution, from the Head of State to the rights of individual citizens, subject to international obligations such as European Union membership.
9.18 The current constitutional arrangements, with the Queen as Head of State of an independent Scotland, a Scottish Parliament and Government modelled on the existing institutions, and continued membership of the European Union, would provide a robust and tested constitutional framework for Scotland in the event of the transition to independence. Some adjustments would be needed to the relationship with existing United Kingdom bodies where new partnership arrangements were agreed.
9.19 An independent Scotland could consider further progress, for example removing the religious discriminatory aspects of the succession to the throne, or formulating and agreeing a fully codified and written constitution. These issues would be decided within Scotland, either by the Scottish Parliament, or, as at the moment for major constitutional change, through a referendum.
9.20 Responsibility for elections to the House of Commons, the European Parliament and the Scottish Parliament is reserved; responsibility for local government elections is devolved, although the franchise for these elections is reserved.
9.21 There are now four different voting systems in use in Scotland. First past the post for United Kingdom Parliamentary elections; the additional member system ( AMS) for elections to the Scottish Parliament; single transferrable vote ( STV) for local government elections; and a closed party list system for elections to the European Parliament.
Election recommendations of the Commission on Scottish Devolution
9.22 The Commission recommended that the responsibilities of the Secretary of State for Scotland relating to the administration of elections to the Scottish Parliament should be devolved, which would transfer administrative responsibility. Legislation for Scottish elections would continue to be the responsibility of the United Kingdom Parliament and Government.
9.23 The Gould Report into the combined local government and Scottish Parliamentary elections of 2007 was clear that fragmentation of responsibility was a major factor in the problems encountered. 130 The Gould report concluded that the Scottish Parliament should have full responsibility for the Scottish Parliamentary elections. The Commission's recommendation would actually lead to further fragmentation of decision-making risking greater problems.
9.24 Full devolution of Scottish Parliamentary elections would bring accountability closer to the people of Scotland. With full devolution of responsibility for elections, the Scottish Parliament could consider the most appropriate voting system - perhaps STV in line with Scottish local government elections - and the voting age. The Scottish Parliament could also examine more imaginative ways to increase voter participation following its decision to decouple local government and Scottish Parliamentary elections.
9.25 The main electoral effect of independence would be that Scotland no longer returned Members of Parliament to Westminster. Scotland would no longer use the first past the post system for any of its elections, and would use only proportional voting systems.
9.26 Scotland would also be free to choose its system of electing Members of the European Parliament, which is currently decide by the United Kingdom. The method chosen would depend on the number of MEPs Scotland secures in negotiation, which is likely to be more than the current six (Denmark, of comparable size to Scotland, has 13 MEPs).
9.27 It has long been a part of Scottish constitutional tradition that the people of Scotland should be able to decide their own constitutional arrangements. However, the Scottish Parliament does not currently have the responsibility for determining the best way of governing the nation, as aspects of the constitution are reserved to the United Kingdom.
9.28 The sovereignty of the people of Scotland could be recognised legally and constitutionally within the United Kingdom if the Scottish Parliament had full responsibility for determining its own functions and role, as well as its structure and elections, consulting either or both the Scottish people (by way of referendum) and the United Kingdom Parliament. There are precedents for such a model. However, independence would provide the Scottish people and their Parliament with the fullest responsibility for their own government.