Devolution in Scotland and the Question(s) of Devolved Consent : [Constitution, Europe, External Affairs and Culture Committee - Adviser's Briefing]

McCorkindale, Christopher (2023) Devolution in Scotland and the Question(s) of Devolved Consent : [Constitution, Europe, External Affairs and Culture Committee - Adviser's Briefing]. Scottish Parliament, Edinburgh. (https://www.parliament.scot/-/media/files/committe...)

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Abstract

Why is 'consent' an important feature of the devolution settlement? In 1973, the Kilbrandon Commission reported its conclusions on 'the present functions of the present legislature and government in relation to the several countries, nations and regions of the United Kingdom' and whether in 'the interests of…prosperity and good government…changes are desirable in those functions or otherwise in present constitutional and economic relationships'. A majority report concluded that devolution was the preferred way to 'counter over-centralisation…to…strengthen democracy [and to respond to] national feeling in Scotland and Wales'.1 Other options were considered. Continuity was not an option precisely because the problem identified by the Commission was the overconcentration, and the unrepresentative and unresponsive nature, of executive and legislative power at the centre.2 Independence (the transfer of sovereignty to the nations over all matters) was rejected on the basis that political will was lacking. Federalism (a division of sovereignty between the nations and the centre) was also rejected on the basis of England's dominant position in terms of 'political importance and wealth' as well as the need for wider constitutional reforms – 'a written constitution, a special procedure for changing it and a constitutional court to interpret it' – that were unlikely to find general acceptance.3 Devolution, on the other hand, in which significant powers are exercised at the sub-state level, but where full sovereignty is retained at the centre, seemed capable of delivering more representative and responsive government in Scotland and Wales without the kind of radical change necessary at the centre (the loss or division of sovereignty) that, for lack of political will, might undermine reform from the very beginning.

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