Smith Commission: Not a Law-Making Body and it cannot Bind the British Parliament

The British Parliament is the ultimate law-making body in the UK. Parliament Square photo 5-6-14 copyright of Alistair McConnachie

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Alistair McConnachie explains that the British Parliament is the ultimate law-making body in the UK; the so-called 'vow', made by the party leaders prior to the referendum, is not binding on the British Parliament; and the Smith Commission – which arose out of this 'vow' – was not a law-making body.

Consequently, nothing has been 'promised' by the Smith Commission because it had no constitutional or democratic power to do so.

Therefore, after the General Election, it will be entirely proper for our new MPs to change the Draft Bill – which has arisen from the Commission's proposals – to something less damaging to the integrity of the UK.

Alistair McConnachie has a degree in Scots Law from Strathclyde University.

Posted on this site on 14 March 2015.

The Smith Commission was set up 5 days after the referendum on 18 September 2014. It consisted of 2 representatives from each of the 5 parties which have MSPs at Holyrood, regardless of their popular support, and the Chairman, the cross-bench peer, Lord Smith of Kelvin. It produced a Report on 27 November 2014, which has since been turned into Draft Legislation. A Bill may be voted upon sometime in the new British Parliament after the General Election.

The Smith Commission arose out of a supposed 'vow' to deliver more devolution, which had been made by the 3 party leaders on the front of The Daily Record on the 16 September 2014.

However, as this article will point out, to imagine that a supposed 'vow' was binding, and that the Smith Commission proposals should be considered final, is to misunderstand the British constitution and the way that our democracy is meant to work.

Firstly, we should point out that the party leaders, Messrs Cameron, Clegg and Miliband did not use the word 'vow'. This was added as the catchy headline by the editor of the newspaper, probably because he knew he could try to entrap them with this phrase, and get away with it!

But even if we imagine that the party leaders intended to make it a 'vow', the fact is that not one of them had the authority to make such a promise.

This is because no political leader, or politician, can bind the British Parliament.

David Cameron cannot 'promise' more powers because it is not in his gift to do so. Neither can the Leader of the Opposition or the Deputy Prime Minister.

These 3 men cannot tell the British Parliament what to do! The British Parliament is made up of 650 free thinking men and women who decide what to vote for. They do not have to follow the advice of their party leaders – even though party 'whips' may try to enforce such discipline. This is a basic constitutional fact.

The most the party leaders could and should have said is, "I will attempt to persuade my political party of this but I cannot be assured that they will all agree with me."

In theory, Messrs Cameron, Clegg and Miliband might not even be MPs after the General Election on 7th May 2015. Gordon Brown, the architect of the 'vow', certainly will not be an MP, because he is standing down!

Parliament – the Commons, Lords and Queen – has the final say, not the party leaders. The party leaders cannot speak for Parliament.

Indeed, even if every Commission recommendation had been passed into law prior to the upcoming General Election, the incoming Parliament, made up of many new people could have revoked it entirely! As we say, no British Parliament can bind its successors.

That such a 'vow' should be taken seriously is proof that many people no longer understand the British Constitution, or how law-making in our democracy is meant to work.

In summary: 'vow' or 'no vow' – Messrs Cameron, Clegg and Miliband's words are not binding upon the British Parliament.

The Commission produced a Report which included a set of recommendations to devolve more power to Holyrood.

From the beginning, the Commission, its Report, the Scottish media, and the political class in general throughout the UK misrepresented the Commission as a law-making body.

This was possibly an inadvertent misrepresentation, but it was a misrepresentation nevertheless – and a damaging one.

In fact, the Smith Commission was merely an advisory body; its proposals merely recommendations.

To imagine that the Smith Commission was a law-making body would be to upset centuries of our law-making constitutional structure. It would be to usher in a new era of law-making by unelected committee, appointed by self-interested political parties.

Even the Coalition Government (which is different from the British Parliament) has set up some kind of campaign to push these recommendations as if they are already law.

It is doing so on a Website, on Facebook and on Twitter (#OurUnitedFuture) and in a leaflet to be delivered to everyone in Scotland. (How exactly our future is going to be 'United' if a nationalist parliament at Holyrood is given more power to divide Scotland and break up the UK is not explained.)

There are even videos on YouTube, created by this government campaign, with a couthy Scottish narrator speaking about how "Scotland is Changing". Yet none of this has even been debated in the British Parliament, much less voted upon.

The Coalition Government has no authority to be saying any of this and to be further misrepresenting these recommendations as law.

We regularly see people on Facebook – even unionist-inclined people – who have been misled into thinking that the Smith Commission recommendations are already law.

The recommendations are not law.

They are still be to debated, changed, and voted upon by our new British Parliament sometime after 7 May 2015. In theory, they don't even have to be passed at all.

Yet nobody – other than this website – is pointing out this fact!

Here is what should be happening.

Properly, an advisory body makes a set of recommendations to the British Parliament. These recommendations may be turned into a Draft Bill, and all the democratically-elected MPs consider the proposals. All of them – from England, Scotland, Northern Ireland and Wales – consider what is best for the United Kingdom as a whole.

Our British politicians, looking out for the best interests of the entire UK, debate them, change them, remove things which would be damaging to the integrity of the UK, add things which make it stronger and more united, and then vote on the final Bill, which will then be passed into law, or not passed into law, as the case may be.

However, the Smith Commission appears to have exposed us to a new way of UK law-making.

Now, it seems, we are expected to accept that appointed members of the political parties – and in one part of the UK only – sit around a table, act as if they are law-makers, come up with a document which they agree upon, and then misrepresent these proposals as a set of new laws which are to be rubber stamped by the democratically-elected British Parliament, and are to inevitably pass into law, regardless of the opinions of all of our British MPs – who we rely upon to look out for the best interests of all of Britain.

From the very start, the Smith Commission was misrepresented to us as a law-making body in and of itself. As we say, this may have been inadvertent misrepresentation made worse by the parochial Scottish media, but it was the representation nevertheless. And that is how it continues to be understood by the many people who don't understand how laws are meant to be passed in the UK.

The fact is, the Smith Commission was – and its Report remains – nothing more than a creation of the political parties intended to make general recommendations to the ultimate authority, which will be the new British Parliament, elected after 7 May 2015.

By misrepresenting itself as a law-making body, with the collusion of the media in Scotland, the Commission set a very bad precedent, seriously damaged our idea of how laws are made, and set unrealistic expectations among a section of the public in a harmful way (see below).

Only in a country where too many people don't properly understand how our British Parliamentary democracy is meant to work could an advisory body be able to pass itself off as a law-making body.

Only in a country where too many people don't properly understand how our British Parliamentary democracy is meant to work could an advisory body, appointed by political parties, represent its Report as a done deal apparently to be 'railroaded' through the British Parliament and 'rubber stamped' into law with the absolute minimum of debate or disagreement expected.

It seems the Commission's proposals are to be treated like some sort of EU Regulation – rushed through and rubber-stamped, without any further thought and input.

This is not how our democracy is meant to work. It goes against our constitutional tradition. To accept this way of doing things would be to accept a degrading of our democratic process.

Rather, it is in the British Parliament where each one of us, through our elected politicians, work out what is best for the whole of Britain – not just what is 'best' according to some appointed party apparatchiks sitting around a table in one part of the UK.

When the Commission's proposals come before our British Parliament (in the form of the Draft Bill), we urge our MPs to embrace that ideal – that British ideal – and we urge them to subject the Bill to the serious criticism and analysis – from a pro-British perspective – which it urgently requires.

We also urge our MPs to argue strongly against this "Law-Making by Unelected Committee" travesty.

Having looked at how our law-making system is meant to work, let's look at some further examples of how the Commission masqueraded as a law-making body.

For example, its 'Terms of Reference', published on 23 September 2014, only 5 days after the referendum which had categorically rejected separation and nationalist attitudes, stated, "The recommendations will deliver more financial, welfare and taxation power, strengthening the Scottish Parliament within the United Kingdom."

The verb 'will' is used in order to express the recommendations in a future tense; and in an inevitable, and authoritative manner – as if the Report is 'laying down the law'.

It did not qualify the verb by saying properly, "The recommendations will be suggested for the consideration of the British Parliament, the ultimate law-making body for the United Kingdom." Or "The recommendations will suggest possible powers which could be devolved after debate in the British Parliament."

Instead, from its very Terms of Reference, it misrepresented itself as a law-making body, which somehow had the authority to declare new laws!

That is unconstitutional and undemocratic.

The Report released on 27 November 2014 further misrepresents its proposals as new laws. Throughout the Report, its language deliberately usurps the proper constitutional and democratic law-making role of the British Parliament.

To take an example, paragraph 21 states "UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions."

Here we have an unelected advisory body telling the democratic British Parliament what it will state in its legislation. That's just wrong, constitutionally and democratically.

It continues throughout the Report, where every recommendation uses the verb 'will'. For example, paragraph 32, "Responsibility for the management of the Crown Estate's economic assets in Scotland, and the revenue generated from these assets, will be transferred to the Scottish Parliament. This will include…"

The language of the Report goes strongly against the British democratic tradition where MPs make the laws after debate in the British Parliament.

The language used is an attempt to make, and declare, law by unelected committee, rather than by the democratic will of everyone in the UK expressed in our shared British Parliament.

Really, what were the Commission members and the draftsmen thinking?

It sounds very much like they were going out of their way to disrespect the proper constitutional and democratic role of the British Parliament in this process. It sounds very much like they were trying to boss the British Parliament about.

Such language has no respect for the role of the British Parliament in our constitutional and democratic structure. And it has no respect for those of us – over 2 million of us – who have just voted to maintain our British Parliament in our lives and who understand its role and value.

Was the Commission's language the product of ignorance? Or was it intentional?

By misrepresenting itself as a law-making body, by using language which disrespects the role of the British Parliament in the law-making process; and by ignoring the wider British parliamentary context which requires all of the UK to agree via the mechanism of Westminster – the Commission has set up a possible conflict for the nationalists to exploit between 'Scotland' and the rest of Britain.

For example, if the British Parliament removes or changes some of these recommendations – which it is perfectly entitled to do in order to maintain our unity – then the nationalists and the parochial Scottish media will portray this as 'Westminster' going against 'Scotland', when it is nothing of the sort. It would simply be the British Parliament looking out for the best interests of all of us in the UK.

It will be perfectly proper for Westminster to ignore some of these recommendations if they are found to be damaging to the long-term unity of the United Kingdom.

Yet, by misrepresenting itself as a law-making body and by failing to clarify itself properly as merely an advisory body to the British Parliament, the Smith Commission has set the seeds for possible unrest among nationalists who don't know how law-making in the UK is meant to work.

We emphasise that it is highly undemocratic and unconstitutional to expect anyone – whether a party leader, a Commission Member, an MP, an MSP, or anyone in the media – to give any guarantee about the Commission's recommendations.

It is a constitutional fact that a Parliament cannot bind its successor. The Smith Commission recommendations can only ever be just that: 'recommendations'.

These proposals will be debated, and any part of the Draft Bill can be dropped or changed, in a new Parliament. Since nobody knows what the make-up of the British Parliament will be after 7 May, then nobody can or should predict that any of these recommendations will be accepted by all the parties, or even passed into law.

Politicians in the British Parliament should not proceed in lockstep with their respective leadership's demands. After 7 May, 650 MPs have the power to decide where they want these recommendations to go, regardless of their party leaders' stated positions.

It is our desire that the new Parliament will change the Draft Bill to something less damaging to the integrity of the UK.

That is how the British system of democracy is meant to work!

Over the next few months, we will be publishing articles which examine the Draft Bill in depth. We intend to use this material to provide the new MPs with a resource which will brief them quickly and easily on its anti-UK dangers, and provide suggestions for pro-UK improvements.

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