Wednesday, 26 August 2009


With my emphasis added, Daniel Korski writes:

One of the oddest parts of Libyagate is what it says about Gordon Brown’s notions of devolution. The Prime Minister does not want to comment on the affair because, we are told, he sees it as a matter for the Scottish government, not the British government.

So, if the actions of a devolved but subordinate level of government go against the state’s interests, the leaders of that state should stay mum? That's certainly not the view taken by successive US administrations; they have often condemned state-level actions, even when the federal government has been legally powerless to do anything in practice.

The UK has no written constitution as in the US, but a clear constitutional settlement nonetheless. Now I am not a lawyer, but as far as I understand it, the UK Parliament retains sole authority to legislate over so-called reserved matters. This can only be altered by further primary legislation of the UK Parliament. Within the Scotland Act 1998 reservations to all devolved matters are those concerned with the UK as ‘a state’ and include e.g. the Constitution, foreign affairs and defence.

Let's play a little thought experiment. What if a devolved level of government takes an action that is within its legal competence but which leads to war with the state and a third country? Would the state have the right to curtail the otherwise legal actions of the subordinate level of government to defend the whole country's interests and security? Most people would say so.

That was an extreme example, but the point is serious and recognized in international law. Under the so-called laws of state responsibility, a state is responsible for the actions of its officials and organs, even if the organ or official is formally independent. It is even responsible if the organ – in this case a devolved level of government - is acting ultra vires, that is, “beyond the powers” of the state. Indeed, entities not even classified as organs of the state may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in a particular instance. So the UK is legally responsible for Scotland’s actions.

In other words, if the power to conduct foreign relations is truly an exclusive competency of the UK government, with no role for the devolved bodies, a logical consequence is that some devolved actions and indeed laws impinging on foreign relations are invalid, even in the absence of already-established UK government policy. Libyagate is not only about Gordon Brown's politically-calculated absence, or Kenny MacAskill’s misguided notions of compassion, but about a constitutional grey area that should be explored further, at the very least by the Judicial Committee of the Privy Council, which is responsible for legal matters arising from Scottish devolution.

Ah, the Judicial Committee of the Privy Council. The reason why there will still have to be new Law Lords, because they will be the members of that Committee, and it remains the final Court of Appeal by the free choice of several Commonwealth countries (at least one, I happen to know, without even the Queen as Head of State), though not of its members' own.

As well as having, it seems, the role in Scotland that Scottish Nationalists of all parties have always insisted that it didn't have, though only because of the devolution in favour of which they voted. But no such role, at least directly, in the affairs of that part of the United Kingdom in whose law its members are trained and qualified.


  1. Exactly right.
    Devolution is a constitiutional nonsense.
    Which is why the experiment will fail.
    Either Scotland becomes re-integrated into the "UK" or gains full independence.
    Either of those is logical. You and I obviously differ on our hopes for the outcome.

  2. David, a judge doesn't need to be a member of the House of Lords to sit in the Judicial Committee of the Privy Council. They need only be a Privy Counsellor. Plenty of non-peers have sat as members before. The current law lords /future supreme court justices are now, in fact, forbidden from taking their seats in the Lords as long as their term as supreme court justices continues.

  3. John, I don't know why you would want Scottish independence. It would be very bad for the Catholics in Scotland, except perhaps the distinct population in the Highlands and Islands. Not for nothing did the SNP win the Holyrood set with Ibrox in it.

    Will, in theory; but the Law Lords keep it going, for the very good reason that they are paid to.

    As for "The current law lords /future supreme court justices are now, in fact, forbidden from taking their seats in the Lords as long as their term as supreme court justices continues" - I know, isn't the whole thing too ridiculous for words? Not properly thought out, of course.

    How we could ever get rid of it is altogether another matter. "Supreme" means exactly that. No longer Members of Parliament, they will have no compunction in simply striking down any statute that they didn't like. And no one will be able to do anything about it.