Scotland's Constitution: Law and Practice

REVIEWS

C. M. G. Himsworth and C. M. O’Neill, Scotland’s Constitution: Law andPractice, Edinburgh and London: Lexis NexisUK, 2003, xlþ 549pp, pb d43.00.

This book is one of the ¢rst comprehensive treatments of Scotland’s constitutionsince devolution. It does a hugely valuable service, by providing a wide-rangingtreatment of how Scotland is now governed in legal and institutional terms.Thecontents list is much what one would expect: the authors survey the main topicsof interest starting with a survey of the role of constitutions in the abstract andprogressing through ‘the Scottish Constitutional Context’ (including the Treatyof Unionwith England, and theUK’s membership of the EU).Then they exam-ine the roles of the UK and Scottish Parliaments, the issue of devolved legislativecompetence, the role and relationship of the Scottish Executive andUKGovern-ment, legislative processes atWestminster and Holyrood, and government’s par-liamentary accountability. They conclude by considering the role of the courtsespecially in public law matters. Along the way they cover such important ifneglected topics as the constitutional position of local authorities and the broaderpublic sector, and the nature of the ¢nancial relationship between the UK andScotland. The account is thorough and comprehensive, surveying a wide rangeof o⁄cial documents as well as statute, case-law and secondary discussions. It isalso clearly-written and readable, except for some important if detailed discus-sions which are contained in footnotes rather than the main text. It is largelya black-letter account, explaining what Scotland’s post-devolution constitutionis rather than seeking to approach it from more theoretical points of view or todiscuss broader issues such as sovereignty.

The book has a number of signi¢cant virtues. One is negative: the authorsavoid the vice to which some post-devolution writing on Scotland (especiallyby students of politics) has been prone, of treating devolution as meaning thatScotland is or should be autonomous. Throughout, they give full credit to theimportance of theUK aspects of Scotland’s position and to theUK-Scotland rela-tionship.They give a clear account of the role of the courts in determining legalquestions relating to devolution and of such litigation as there has been so farabout Scottish devolution (pp 501^520). Another strength is the grasp of someof the legal subtleties and complexities of devolution. Particularly laudable aretheir discussions of the principles of dividing legislative competence betweenScotland and theUKby reserving somematters to theUK (pp169-93), the struc-ture of executive devolution (pp 244^250) and public bodies working acrossthe Scottish-English border (pp 286^291) ^ tricky issues which are commonlymisunderstood.

There are also some £aws.More discussion of the (Westminster) Parliamentaryaspects of the Sewel convention, by which the UK Parliament continues to

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legislate for devolved matters, would have beenwelcome ^ the discussion largelyaddresses inter-executive co-operation in this ¢eld. Similarly, it would be usefulto look at the role of Scottish Parliament committees in the legislative process, as asubstitute for a second chamber: how e¡ectively are they able to play the role ofscrutinising policy and revising legislation? In the context of discussing privatebill procedures, the role of theTransport andWorks Act 1992 and its order-mak-ing procedure ought to be noted. And a discussion of the relationship between the1706 Treaty of Union and the Scotland Act 1998 would also be interesting, illu-minating the extent towhich one constitutional settlement for Scotland has beenlaid imperfectly over another, thereby creating a confusion of authority betweenWestminster and Holyrood.

Such a comprehensive and clear book on an important, and developing, topicis to be warmly welcomed. One hopes that this will be the ¢rst of many editions,and that oversights noted here will be addressed. It is a book that deserves a placeon many shelves ^ not just of undergraduate students but of all lawyers (andmany others) interested in Scottish devolution.

AlanTrenchn

Michael Moran,The British Regulatory State: High Modernism and Hyper-Innovation, Oxford: OxfordUniversity Press, 2003, xþ 239pp, hb d42.00.

It is sometimes claimed of legal scholars who focus on regulation that they areattempting to colonise the ¢eld of law, viewing all legal phenomena through aregulatory lens. I do not know what truth there is in that claim, but suggest thatMichaelMoran’sTheBritishRegulatoryState o¡ers a parallel attemptwithin politicalscience to view thewhole of government and governance through the lens of reg-ulation. Moran’s core argument is that the stable patterns of British governmentfor much of the twentieth century were spectacularly disrupted by the displace-ment of a style he characterises (following DavidMarquand) as ‘club government’with amodel of government labelled ‘the new regulatory state’. Aproduct of both¢scal and systems crises originating in the1970s, this ‘hyper-innovation’ in govern-ance has caused the state to take on more than it can manage, to claim a capacityfor control over phenomenawhich are without its reach, and is the root cause of anumber of very signi¢cant failures of government. Attempts at regulating theoperation of the railways and matters of food safety provide key examples.

Moran is not the ¢rst to identify the shift towards a regulatory state model ofgovernance in the UK. However, there are two aspects of the analysis that arenovel and important. First is Moran’s starting point for analysis of the shift. Thepre-regulatory state model has conventionally been conceived as that of the wel-fare or provider state, conceived as being bureaucratic and hierarchical.This char-acterisation has, perhaps, derived from an excessive focus on changing governancein themuch discussed utilities sectors and a neglect of other keydomains. It is alsoa product of an excessive degree of formalism in understanding governmentalarrangements.Working with a much extended horizon that takes in not only

nThe ConstitutionUnit, School of Public Policy, University College London.

Reviews

1035The Modern Law Review Limited 2005