DEVOLUTION FOR SCOTLAND IN THE UK CONSTITUTIONAL FRAMEWORK

United Kingdom, in official terms “ United Kingdom of Great Britain and Northern Ireland” has an unique constitutional structure, which has attracted great attention to analysis among the public lawyers all around the world. As the founding source of so called, “parliamentary” system, UK system has a very basic public structure from the outset and this illusionary observation will definitely fall short of real living mechanism that has several far deep dimensions.

As an introduction to the Constitutional Law or Public Law studies, it is essential to commence with a description of the called constitution and then to place the quoted requirements within that particular jurisdiction by means of legal, institutional, doctrinal aspects. In following our own instruction, we may very well start with a definition of the constitution:

A set of fundamental rules, which defines the basic framework and the functions of the public authority and prescribes the fundamental rights and liberties…

Since the constitution of a country defines the basic framework and the functions of the public authority on one hand, it is an historical fact that from the very early stages of the mankind there has been written references to the power of the ruling person or classes or institutions in a society. So it was long before the clashes between the public authority and the civil liberties that there has been rules regulating the state conducts. However the importance of these written provisions has started to be weighed in the 18^th century as the civil liberties were in the agenda. The struggle for the expansion of the liberties was against either to a domestic suppression or to an external power, usually an occupying one. So as one by one the guarantees have been achieved new states or public authorities have been established with different institutions and with different political doctrines. The end of this historical social turmoil established a necessity to enact special rules with special provisions. That necessity provided the birth of single written documents called constitutions, with a special status of hierarchy in the relevant legal system.

In the context of United Kingdom, the last foreign occupation outside the Britain dates back to 1066 and Britain has not suffer an occupation or colonialism in the manner of the other nation states which has written constitutions. Also, despite the small gap in the second half of 17^th century, there has not been any big civil clash that might create conditions demanding for a single empowered constitutional document. UK has experienced her social and legal transitions rather in an evolutionary form. So in contrast to the post-revolutionary construction of the societies UK public legal structure has evolved during the centuries according to the practical needs of the social life. The unique social and historical background of the UK legal system never required a written document to codify the state[1] conduct. In better words it has required more than one single document for this purpose but since the system evaluated through the absorption of social experiences there has not been much a matter of concern to return back and consequently a need to empower the special legislation to maintain the guarantees that many other jurisdictions seek. This leads us to the very fact that the constitution of UK is written. However as Lord Scarman states that ‘today our constitution is not “unwritten” but hidden and difficult to find’.[2] Consequently in UK there is more than one single document, which can serve for the needs of a modern single constitution[3]. This vast and sporadic existence of the UK constitution does not only make a study on the area difficult but lacks of any particular hierarchy provided for these documents.

The historical and social realities of the UK have culminated with a vast number of statutes of constitutional importance. For a constitutional study to find the place of the devolution scheme in this framework it is required to understand the UK public law machinery rather than trying to cover all the constitutional statutes. The relatively stable development of the UK constitutional understanding stands on the relatively stable institutions and fundamental principles that enable the system to improve regarding the social needs.

The historical and political fact for the UK legislation is the stable concept of parliament as a founding institution, which exists over centuries and a constructing principle of “legislative supremacy” developed again in centuries.

As it is observed above there is more than a single legal instrument created through out the history of Britain until today to value with constitutional importance. The statutes enacted accordingly from an institution of “King/Queen in Parliament”, which is composed of Crown, House of Lords and House of Lords sitting at Westminster, London. The history of the English parliament dates back to 1265, the era of Edward I. The parliament as an established institution clearly appeared in the 15^th century. Britain, apart from the Crownwell experience, never tried a republican system. The question has not been much on the existence of monarchy but rather how to restrict powers of the crown until the beginning of the 18^th century. A threat of monarchist tyranny has been saved for and all after the 1689 Bill of Rights for England and 1689 Claim of Rights of Scotland. 18^th century can be recorded a century for the developments of responsible government in addition to the fundamental developments which founded the United Kingdom of Great Britain. 19^th and 20^th centuries have witnessed the power struggle between the House of Lords and the House of Commons, which ended with the clear victory of the Commons finally with the House of Lords Act 1999.

Although there has been a great power struggle within the constitutional framework of the United Kingdom for centuries, these have been mainly focused on one institution: the “Crown in Parliament”. The restrictions upon the exercise of Royal Prerogatives, for instance, were an aspect of the parliamentary mechanism because the legislation in UK does not necessarily mean only the House of Commons. It is a complicated system that is composed of different legs. So while the balance in the parliament has been changing, the concept of parliament has been left intact or positively highlighted in the era towards democracy. The power struggle between the Commons and the Lords also has experienced the same kind of form, which has not impaired the notion of parliament.

Consequently it is a clear constitutional fact that throughout the history of UK the “Crown in Parliament” has been the supreme legislative body. Restructuring the monarchism on different stages did not break the chain of the endorsing authority of the parliament. This endorsement has been conducted either in new acts, statutes or in implicit or explicit approval of the common law or the constitutional practises.

In Diceyan terminology, “the legislative sovereignty”, or more reliable reference for today, “legislative supremacy” has been the fundamental source for the UK legal system. This doctrine stands on a number of principles, which are inevitable to the nature of the doctrine.

The first one is the founding principle that has enabled the British Constitutional system evolved through the centuries: “No parliament can bind its successors!” It must be also followed accordingly that no parliament can be bound by its predecessors This principle provides the UK system to adopt herself to the daily difficulties and the expectations without any restrictions on it. The cited principle is very well established with the non-hierarchical nature of legislation. Although some of the legislation apparently has more constitutional importance, this could be related to the political importance of the given legislation rather than envisaging any kind of restriction for the coming parliaments. The other very crucial aspect of the doctrine is the lack of a judicial review of the parliamentary legislation. This is not only a doctrinal fact. There have been several attempts to challenge the legislation of the parliament before the judicial organs but failed so far due to the lack of any provision within UK Constitutional system for the judicial review of the statutes.

Many of the fundamental rules have been subject to either amendment or repealing so far. Bearing a very highly constitutional profile, Bill of Rights for instance, could not escape to be amended with the enactment of the Defamation Act 1996. A recent example can be given with the House of Lords Act 1999, which allegedly infringed the safeguards of the Treaty of Union.

The hierarchy of the statutes has been submitted before the courts to endorse some legislation higher than other enactment. This is of particular importance regarding the nature of the Treaty of Union in 1707 between England and Scotland as will be described below in detail. In theory the Treaty of Union in 1707 brought the two countries, England and Scotland together and established a new country with a new parliament. The treaty also provided special privileges to Scotland to meet the concerns of Scottish people. For instance, the Church of Scotland has been prescribed as the dominant Church of Scotland. Also, the high courts of Scotland have been given power to conduct their work after the union. However following these several privileges there has been no instrument to limit the powers of the Great Britain parliament. So it is questioned whether the provisions of the Treaty of Union are rather moral restrictions upon the new parliament for the Great Britain or as a founding legislation they have more importance to be protected comparing to the other enactment?

These questions were submitted in two very well known cases of MacCormick v. Lord Advocate[4] and the Gibson v. Lord Advocate[5]. In the case of MaCormick v. Lord Advocate, Lord President Cooper suggests that, it is difficult to understand why the new UK parliament after the union has inherited a peculiar institution of English parliament that is the unlimited sovereignty of the parliament. He states that such a principle did not exist in the previous Scottish parliament. However the Lord President clearly hesitates when it comes to review the legislation asserting that there is no authority of the judiciary to review the legislation in terms of compatibility to the fundamental laws. In Gibson case where a judicial challenge has been introduced about the incompatibility of the European Communities Act to the Treaty of Union, the court concluded that categorisation of the legislation to the needs of the subjects is entirely in the discretion of the parliament. So the safeguards within a particular legislation are moral issues rather than legal limitation. This argument deserves to be strengthened by the fact that there is a lack of judicial review in the system.

Although it is asserted that the doctrine of legislative supremacy might be accompanied by some other doctrinal principles, namely separation of powers, equality, rule of law, etc the parliament on several occasions did not hesitate to legislate on controversial issues. Some indemnity acts or the retrospective legislation, which has been enacted in the parliament, is the clear illustration of the legislative supremacy, and in theory the superior meaning allocated to the doctrine[6].

United Kingdom of Great Britain and Northern Ireland is a unitary state composed of several nations and countries. The common error to refer UK as England must be corrected here with a brief description of UK State system.

Wales

The joinder of Wales to England was not so much a union as an absorption[7]. Much of today’s Wales was conquered in the end of 13^th century. She is united with England in 1536 with an Act of the English Parliament. The Wales and Berwick Act 1746 provided that where the expression “ England” was used in an act of parliament, this should be taken to include the dominion of Wales and the town of Berwick on Tweed. This has been ceased only in 1967 the Welsh Language Act. In 1968 the post of Secretary of State for Wales was established and the welsh Office emerged as a department of the UK government. In 1998, following a referendum, the Government of Wales Act has provided an Assembly for Wales however with only a power of secondary legislation. The Assembly is composed of 60 members. 40 members are elected on a single constituency basis and 20 of them by the list system.

Ireland and the Great Britain have been united under the Union with Ireland Act 1800, and the act in the Irish Parliament respectively. However Ireland was not ruled fairly and cultural, economic and religious differences have caused social disturbances in the country. Eventually home-rule was provided for the country in 1914 but enforcement has been suspended due to the 1^st World War. Following the uprisings of the nationalist movement of Sinn Fein, the island basically divided in two separate parts. The South Ireland, which is dominated by Catholics reached a status of Irish Free State in 1922 as a member of Commonwealth and declared her withdrawal from the Commonwealth in 1949. Northern Ireland where is dominated with the Protestant communities and an important ratio of Catholic minorities lived another destiny. The North on the other hand -six of the nine counties of Ulster[8]- are provided a home-rule until 1972 when the social disturbances between the loyalist and nationalists have been unbearable. Subsequently the UK suspended of the Northern Ireland Constitution and applied a direct rule from Westminster. The Good Friday Agreement brought a new dimension to the country which is incorporated with the Northern Ireland Act 1998. Accordingly a devolved Assembly with legislative powers has been established with 108 members. The Assembly is elected under the single transferable vote system of proportional representation. Special voting systems are prescribed in the standing orders of the Assembly to meet the basic qualification for the cross-community approval.

England is the largest country within the United Kingdom. This usually causes a wrong impression that UK is equal to England. 85% of the population of UK lives in England and England covers a territory of almost 3/5 of the UK territory.

England has no protected legal status within the union. A secretary of state for England is not designed in the cabinet for instance, or there is no devolved body of legislative authority to rule merely on English matters.

However the devolution era and the Labour Governments agenda have also some space for England. The Regional Development Agencies Act 1998 must be quoted for this purpose. The statute provided England to be divided into 9 regions, including London. A white paper set out government policy as being to move in due course to directly elected regional assemblies, as and when justified by local demand. The implication was that the areas which most actively sought elected assemblies might be given them first, without a uniform pattern being imposed[9]. Devolution experiences for Scotland and Wales can be interesting examples for England as well as the Greater London Authority Act 1999 that enables a directly elected major with London Assembly.

As it is the main topic of the essay Scotland will be discussed in detail below.

Four different kingdoms living on the today’s territory of Scotland were almost united under the same kingdom in the 11^th century. Unlike Ireland and Wales Scotland has been able to maintain her independence. The final defeat of the English army in the battle of Bannockburn in 1314 strengthened the Scottish Independence against England.

There has been always a tension between the relations and Henry VII’s attempt to marry his daughter Margaret Tudor with the Scottish King James the IV started the events rather accidentally to the unification. It is because this marriage enabled the English Crown enthroned by the James VI of Scotland as James I of England in 1603. This is only personal union of the Crowns. England and Scotland has carried to exist with their own legal establishments. Although there has been several attempts to bring the countries together and united, they have all failed for different reasons but for sure the lack of trust to English was a primary concern. However there were small steps taken forward in the meantime. Trade restrictions have been abolished and a single citizenship has been introduced throughout the Britain.

On the other hand the developments on the religious sphere had important impacts to bring these countries closer. With the apparent effect of Calvinism Th Scotland Church has also distanced herself from the Vatican Church and established the Presbyterian Protestant Church which was expected to be more align to the creed of the Church of England, which has also concerns towards Catholicism and particularly France with the religious agenda in her policies to expand and challenge the supremacy of England in overseas.

The civil war in the second half of the 17^th century brought the centuries closer to establish a limited monarchy and save the religious fundamentals of the society. The Bill of Rights 1689 for England and Claim of Rights 1689 for Scotland resulted with the restriction of the monarchy that is responsible to the parliament. The existence of two parliaments for one restricted crown appeared to be bizarre in every sense.

England’s colonial expansion was no doubt a vast economic interest for Scotland but has never been sure to relinquishing the sovereignty in return of these economic benefits. On occasions even just before the Treaty of Union the two countries were on the brink of war, again for the trading restrictions they have applied towards each other.

In the end the two parliaments asked the Queen to appoint commissioners on their behalf for a treaty of union. The task was completed in nine weeks. It was a treaty of compromise. Scotland bear the relinquishment her sovereignty in the new state and the new parliament in London and the Act of Settlement 1700 for enabling the Crown to the Hannoverian dynasty. In return Scotland has received certain privileges in the treaty which safeguards the domination of the Presbyterian Church in Scotland and the functions and existence of the Court of Session and High Court of Justiciary. In addition England promised to abolish any restriction to Scotland for free trade. The treaty brought about an “incorporating[10]” union in that both countries merged their legislatures and identity.

The administration of has been very much under the shadow of the London parliament. However it must be noted that Westminster has usually been careful in conducting her work with respect to the Treaty of Union despite the doctrine of legislative supremacy. The amendments or implied repeals have been enacted for positive purposes to develop the law of Scotland or the United Kingdom[11]. The legislative supremacy is clearly illustrated in the Act of Union in favour of the Great Britain Parliament with enabling the alteration of the public law of the new country according to the her free will. The alteration of the private law of the Scottish subjects on the other hand designed as conditional to say that the necessity of “evident utility of the subjects of Scotland”. However it is entirely left to the discretion of the parliament to test this condition, particularly with the lack of any judicial review of legislation provided in the system.

Lord Advocate held an office, also serving as a Law Officer of the Crown in Scotland. The changes of the Scottish Administration has started to evolve with the influence of the Home rule question for Ireland. A new system of administration was instituted in 1885 when a Secretary for Scotland was appointed as ministerial head of a Scottish Office in Whitehall. Since 1892, the wartime apart, relevant minister had a seat in the cabinet. In 1926 the status of the ministry has been increased to the level of “Secretary of State”.

The functions and the importance of the Scottish Office gradually increased and in 1998 the Secretary of State were heading a team of five subordinate ministers and employing ten thousand civil servants. She was responsible for agriculture and fisheries, the arts, crofting, education, enterprise and training, the environment, the fire service, forestry, the health, housing, industry, criminal justice and some legal matters, local government, prisons, roads, rural and urban development, social work, sport, transport, tourism and town and country planning and some public corporations operating in Scotland.

It is accepted that the ministerial post for a Secretary of State for Scotland has been a benefit for Scotland. It has provided a direct voice for the Scottish concerns in the cabinet. However whether the voice of the Secretary of State has been heard or not is another issue. This has especially been problematic when the Westminster Parliament majority differs from the majority of Scottish MPs. This was the case when long ruling of the Conservative Party in ‘80s and ‘90s has lacked the support of Scotland in contrast to England and rest of Britain. So the function of a Secretary of State for Scotland could politically be very much restricted

On the way to devolution Report of the Royal Commission on the Constitution must be quoted. Following the signs of asserting more about national identities, Labour government recognised the necessity to assess the constitutional structure of the UK with possible foreseeing developments. The Royal Commission appointed in 1969 and produced her report in 1973 and known as Kilbrandon Report due to the Scottish judge chair of the Commission. The report adopted a broad meaning of the term devolution so as to include both the “deconcentration” of functions within the governmental hierarchy, which it termed “administrative devolution” and the more advanced devolution which involves a transfer of central government powers to regional bodies, although without the “relinquishment of sovereignty”. However this advanced devolution can differ whether being legislative devolution or executive. In the first one some sort primary legislation function would be allocated where in the second one the transfer would be more on subordinate functions. All the commissioners were believing that the central government were overloaded. However the measures to develop the situation differ among the Commissioners. Nevertheless the strongest agreement appeared to be around the idea of legislative devolution for Scotland.

The Labour Party put the issue to her agenda and following a bargain with Liberal Democrats introduced the relevant bills for legislative devolution for Scotland and executive devolution for Wales. The bills passed the parliament and received the royal assent and enacted. However as required by their provisions both acts were submitted to the referendums and since the stipulated 40per cent threshold was not achieved in either country, the Acts were repealed as provided, by Orders in Council.

Despite the loss of the Acts the devolution remained the priority in public debate[12] in Scotland and Wales. And the Labour Party after a brief period of hesitation, allocated a primary importance to her commitment to devolution in the political manifesto. So after the general elections of 1997 the devolution was again on the track. The proposals of the government presented on two different White Papers. Unlike the experience in 1978, the government first submitted her proposals to referendum before legislation in accordance with the Referendums (Scotland and Wales) Act 1997. In Scotland in a turnout of 60.4 per cent, 74.3 per cent of those voting agreed that there should be a Scottish Parliament, and 63.5 per cent also voted the Parliament should have tax –varying powers. The Welsh electorate on the other hand voted in favour of a executive devolution with a Welsh Assembly in a turnout of 50 per cent, 50.3 per cent of those voting in favour.

Following the referendums the Scotland Bill and the Government of Wales Bill were introduced to the House of Commons in 1997 and enacted in 1998. Northern Ireland Act was also enacted in 1998 respectively.

The essential features of the devolution are to be found in the relative enacted statutes but also they are complemented by a variety of more or less formal arrangements, principally a series of agreements between the United Kingdom Government and the devolved administrations which set out the principles on which they will conduct their mutual relations[13]. The agreements “are not legally binding but there is nevertheless a clear expectation that the spirit and letter will be observed by all parties.”[14]

The provisions of the Scotland Act provide legal framework for the Scottish devolution. The devolution for Scotland has all the dimensions of the devolution namely, administrative, legislative and executive.

Administrative devolution continues to exist for Scotland since the Secretary of State for Scotland has still her seat in the United Kingdom Government. She has lost many of her ministerial functions related to the executive devolution but nevertheless some important new duties proscribed for her office in the Act. These are rather political scrutiny of the devolution especially with respect to reserved matters[15].

For the purpose of legislative devolution, a Scottish Parliament is been established by the Act. Scottish Parliament is composed of 129 members (MSPs). It is elected by the Additional Member system, designed to achieve a degree of proportionality between votes cast and seats won through a combination of the plurality or “first past the post” with a regional list system. 73 MSPs are elected from the same constituencies of the Westminster elections[16]. Also seven additional members are elected from eight regions[17]. So in a Scottish election there will be two votes to cast, one for the single constituency one for the list of a political party. The parliament and the elections are designed to prevent any domination of a single party. Labour Party seems to sacrificy a possible advantageous position from an outcome of an only “first past the post” system, since Scotland is a very stronghold of the Labour. They do so in favour of a plural and competing democracy with a compromised election system. This feature of the election system has been illustrated in both of the elections of 1999 and 2003, which have both created coalition governments. That is also to say that British political system experiences the first time the notion of coalition government with a regular compromised political agenda.

Parliament term of office is fixed and four years. However the two thirds of the parliament may decide to dissolve or the a parliamentary deadlock in the choice of the First Minister can bring the elections earlier.

The feature of legislative devolution is demonstrated in section 5 of the Scotland Act. The parliament has limited powers. The subjects of the legislation are divided in two categories; reserved and devolved. Section 5 particularly refers to the reserved matters, which will be retained in the competence of Westminster United Kingdom Parliament. Those matters that are not reserved being generally devolved[18]. The changes to the list of deserved matters may be made by Order in council under section of the 30 of the Act. This can be done only if the Westminster and Scottish Parliaments agree on the change, for the Order in Council has to be approved in draft by both Houses at Westminster and by the Scottish Parliament.

Scotland Act under section 29 places certain restrictions on the competence of the Scottish Parliament. In addition to the restriction that an Act of the Parliament may not relate to reserved matters and cannot modify the Scotland itself and also the Human Rights Act 1998 and European Communities law draw the boundaries of the Scottish legislation. Parliament can not include provisions to any of her enactment that would be incompatible with the Convention right by means of Human Rights Act 1998 or Community law.

Finally it must be noted that The Parliament has power to vary the basic rate of United Kingdom income tax in Scotland by up to 3p. Apart from that it must be remembered that finance for Scotland is provided in a block grant voted by the Westminster Parliament and paid by the Secretary of state for Scotland.

Also a special procedure is provided for the Scottish Parliament that helps the Parliament to exercise her functions within the limits of devolved area.

Legislative devolution provided for the Scottish Parliament can not limit the competence of the UK Parliament to legislate for Scotland under section 28.

The third layer of the devolution for Scotland rests with the executive devolution. For this purpose there is a Scottish Executive established in the Scotland Act. It exercises executive functions in devolved matters. The Scottish Executive is composed of a First Minister, ministers appointed by the First Minister and the Scottish Law Officers. The executive works like a cabinet-style and cabinet members are both collectively and individually responsible to the Parliament. Similar to the restrictions on the legislation, the Scottish Executive is bound to implement European Community obligations in the devolved area and restricted to act incompatible to the Community. Same restriction applies to the Executive exercise subject to the compatibility to the Human Rights Act 1998. Subordinate legislation or other acts of the Scottish Executive must be compatible with Convention rights under the Human Rights Act 1998. (Section 57/2).

A very imported feature of the devolution is the judicial scrutiny that is provided to safeguard the boundaries of the Scotland Act 1998. In addition to the procedural safeguards provided for the Scottish Parliament, there are other provisions as judicial remedies for the Acts of the Parliament. They include measures both before the enactment and after.

Despite of the procedural safeguards for a bill to be introduced according to the Scotland Act and within the boundaries of the devolution, there might be instances where a bill is presented to the Parliament involves concerns being ultra vires. It is then the Advocate General for Scotland, Lord Advocate or the Attorney-General may refer the question in four weeks to the Judicial Committee of the Privy Council. It is then the Judicial Committee who decides on the legislative competence of the Parliament about the particular issue. The outcome of the Judicial Committee’s decision is binding.

Questions of incompetence, termed as devolution issues may be raised after the enactment of the legislation. After a bill has received the Royal Assent and become an Act of the Scottish Parliament, a devolution issue can be raised before the Scottish Courts or elsewhere in UK. Also the appropriate law officers in the countries of the UK can bring the cases before any of the courts after enactment. In general terms the Judicial Committee is the final court of appeal on devolution issues.

United Kingdom is an unique example in the constitutional law studies all around the world. That is because there is not any single document which has been entrenched in legal system to be referred as Constitution in UK. Rather than a single document there are hundreds of statutes of the Parliament which is composed of Queen, House of Lords and House of Commons which the latter bares the weight of the legislation. These documents and Statutes are usually the practical responses to the social and political needs of the society. So the UK Constitution appears to be an evolving character depending on some doctrines and fundamental institution.

One of the fundamental institution- the only supreme by means of constitutional importance- is the parliament. The notion of parliament existed through the centuries in Britain. Although the power struggle in the parliaments has varied in the history, the concept remained intact. In pluralistic democracy there is no doubt that the understanding of parliament hugely depends on the power of the House of Commons and the majority of the House as the ruling party.

The notion of the parliament exists in a society who has not suffered big turmoil in her history. This notion has been supported by several doctrines. One of them is very fundamental the principle of “legislative supremacy”. The doctrine of legislative supremacy provided the parliaments to legislate on any matter where they deem necessary without any restrictions. So we can reach the principle that a parliament can not bind its successors.

This institutional and doctrinal framework of the British Constitution continue to modify itself to the daily necessities. One question remains whether there is a challenge to the British Constitutional understanding with the introduction of devolution scheme throughout the United Kingdom.

Devolution for Scotland occupies a special importance. For one reason, it is a historical fact that Scotland from the very beginning of the Union enjoyed a level of protection regarding her legal system and some nationally cherished institutions, namely the Church of Scotland. In addition to that very legal existence of Scottish legal notion before the devolution with several institutions, the devolution scheme for Scotland provided an elected Parliament for Scotland with legislative powers on devolved areas. So it is not only the parliamentary supremacy to be tested but also the unitary state of UK is experiencing of a very new concept of devolution.

However a mere legal analysis will not be sufficient. Because from the outset United Kingdom is still an unitary state. Scotland Act which constructs the devolution for Scotland is only a piece of legislation without any entrenchment provided against the central government. Devolution is not placed in a federal constitution which could draw the boundaries of absolute legislation areas clearly for central government and federal states. Since the only constitutional doctrine to be referred is “the supremacy of the parliament” and the cited Statute is naturally a legislation of this parliament then successor parliaments will not find their obstacles to intervene the devolved areas in legal context but rather in politics. To provide any hesitation and as an unnecessary provision in the Scotland Act it also clearly states that UK Parliament retains the competence to legislate in all matters for Scotland. So it may be concluded that without the entrenchment of this legislation within the United Kingdom, it is difficult to refer the scheme of devolution as federalism or the end of the supremacy of the Westminster Parliament in the legal context. The political impact of the progress deserves to be observed in detail.

However the framework for the Scotland Act and its related institutions and legal rules resembles a construction of a constitution. This is not a constitution for UK but the question remains whether not for the Scotland? Even in today’s constitutions it is possible to find some articles which can not be altered. Scotland appears to be bound by Westminster Parliament on reserved matters. However the broadness of the devolved sphere and the provisions provided for the judicial review of the implementation of the Scotland Act, especially before the Judicial Committee recalls the very basic Supreme or Constitutional Courts provided to do the same business.

Consequently it must be stated that legal supremacy of the parliament is intact even in the era of devolution. The political aspects of the scheme is quite dynamic. Rather than a constitutional challenge to the UK constitution, devolution for Scotland opens a path directly to Scotland which regulates important part of the public and civil law. It is quite an early stage to refer this document as constitution since Scotland is not the sovereign in her system but at least deserves to be treated an evolving progress either strengthen the union or institutionally dissolute the United Kingdom.

Bradley, A.W. and Ewing, K.D. Constitutional and Administrative Law, 13^th Edition 2003.

Brazier, R. Constitutional Reform: Re-Shaping the British Political System, 2^nd Edition.

Turpin, C. British Government and the Constitution, 5^th Edition, Butterworths, 2002

[1]It must be bear in mind that the universal understanding of the concept “state” and consequently the “citizenship” fails to receive the same attention in the UK legal system. It is rather formulated in the frame of “the Crown”. It is only a 20^th century development for UK to instruct these phrases next to the Crown and his/her subjects.

[2] “Why Britain needs a written constitution?” , 1992, p.4

[3] Albert P Blaustein and Gisbert H Flanz in the Constitutions of the World (1992), present us a with a list of constitutional statutes of the United Kingdom, which names over 300 statutes, ranging from Magna Carta 1215 and Bill of Rights 1689 to more recent statutes such as the Parliament Acts 1911 and 1949, the Crown Proceedings Act 1947, the Parliamentary Commissioner Act 1967, the European Communities Act 1972, the Race Relations Act 1976 and the British Nationality Act 1981.

[4] SC 396, 1953

[5] SLT 134, 1975.

[6] Ex: War Damage Act 1965(For the case Burmah Oil Co v. Lord Advocate(1965) AC75: or the retrospective effects of the The Immigration Act 1971.

[7] Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.19

[8] Northern Ireland is usually referred as Ulster. However it must be noted that to provide a majority for the Protestant communities in the North, it is specially designed to exclude three counties in the Ulster while drawing the boundaries of Northern Ireland.

[9] Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.53

[10]Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.24

[11] An example can be the repealing of the provision in the Act of Union, which obliges the professors of Scottish Universities to make submission to Presbyterianism in Universities Act(Scotland) 1853 and 1932.

[12] In 1989 A Scottish Constitutional Convention assembled, composed of all Scottish Labour and Liberal Democrat MPs together with representatives of local authorities, churches, trade unions and other bodies.

[13] Turpin, Colin, British Government and the Constitution 5^th Ed. , Butterworths, 2002, p.265

[14] Scotland Office Departmental Report, Cm 5120/2001, par. 3.2

[15] Ex: Section 35 of the Scotland Act states that Secretary of State may make an order prohibiting the Presiding Officer of the Parliament from submitting a bill for Royal Assent, if she has reasonable grounds to believe that its provisions would be incompatible with international obligations or the interests of defence or national security, or would adversely affect the operation of the law in reserved matters.

[16] The Constituency of the islands Shetney and Orkland is divided in the Scottish elections so there is one more single constituency in the Scottish elections than the Westminster elections.

[17] These regions are designed in accordance with the European Parliament elections.

[18] Reserved matters include, the constitutional framework, international relations and the European Communities, defence and the armed forces, fiscal, economic and monetary policy, electoral arrangements, immigration and nationality, national security and official secrets, competition policy, consumer protection, ownership and exploitation of coal, oil and gas, nuclear energy, social security, employment and industrial relations, broadcasting, equal opportunities.