Constitutional Issues
 

A number of constitutional or 'legal' objections have been raised at different times to the revitalise agenda. In general our view is that these have no real real bearing on the issues and only seek to confuse the debate.

Reproduced below is a legal opinion presented by UNISON Scotland to the SEC working party on some of the issues.

Introduction

The review of the first Partnership in Power (PiP) cycle in Scotland was helpful in identifying a number of necessary reforms including the need to stimulate greater involvement of members. There is broad agreement that we need to build on that feedback. In particular to ensure that the process is transparent and that the views of the majority of members come through. The National Policy Forum (NPF) has also recognised the need to reform and is undertaking its own review. This review reflects the later cycle of the UK Parliament. Scotland’s PiP cycle started again this year, hence the need to take action now on the findings of the Scottish review.

 In particular there is concern over the practice of presenting documents from the SPF ‘en bloc’. Real alternatives and choices should be set out each year for conference to debate and decide. In addition CLPs and affiliated organisations should be able to submit a limited number of amendments to reports. This approach would promote a more structured debate at conference and give the Party as a whole greater ownership of the outcome.

 Constitutional Amendment

Clause 15 of the SLP rules devolves responsibility for “the party programme for a Scottish Parliament”. The explanation for this rule at the time stated that this “recognises the sovereignty of the Scottish conference for Scottish Parliament policy.” This is achieved through the standing orders and in particular SO 3 that covers the agenda for SLP conference. 

UNISON Scotland, SHA Scotland and Cunninghame North (now North Ayrshire) CLP submitted a constitutional amendment to the 2004 Scottish Labour Party conference as follows:

 SO 3(a) – add at end – “In a year when conference is considering the final stage documents from the SPF, CLPs and affiliated organisations may submit up to two amendments to the final stage documents.”

 This amendment will be considered at the Scottish Labour Party conference in March 2005.

Scottish Labour Party Executive

Prior to the 2004 conference the SLP Executive agreed to establish a working party to consider this and other constitutional amendments. It is tasked with making recommendations that will form the basis of the Executive’s advice to the 2005 conference.

The Working Party held its first meeting on 13 November 2004 and considered a paper from the General Secretary. On this issue the paper argued:

·        That the constitutional amendment should be submitted to the National PiP review

·        That the amendment was unconstitutional because the SLP standing orders must be consistent with and not contradictory to the (UK) rules.

 Following a discussion the working party agreed that the General Secretary would seek guidance from the NEC and report back to the next meeting.

 UNISON Scotland Position

UNISON Scotland does not agree with the position argued in the General Secretary’s paper. 

The National PiP review is rightly not even considering this issue. The only reference to devolution in the current consultation paper refers to learning from each others experience. As set out above the SLP decides the programme for the Scottish Parliament and should adopt processes that are appropriate for a devolved nation. Whilst these will be broadly similar in approach, the Scottish process should reflect, for example, the smaller scale of the exercise north of the border.  

The constitutional point appears to be based on UKLP rule chapter 14 that sets out the arrangements for rules for the Scottish Labour Party. In particular “such rules may not conflict with the model rules approved by conference. Where any matters are not covered by procedural rules approved by the NEC reference should be made to the appropriate national guidelines (such as for conference in chapter 3 above)”.  The key phrase is “may not conflict”.

 Scottish Labour Party rules have to be approved by the NEC. However, subject to NEC approval, Clause X of the UKLP constitution allows party units to adopt additional rules “which shall not contravene the provisions contained in the rules” or “modifications in the rules” to reflect local circumstances. Devolution is an obvious local circumstance.  

We would also argue that our amendment is not in conflict because it seeks to amend standing orders not rules. UKLP chapter 14 makes reference to “rules and standing orders” but the later in ‘conflict’ section only refers to “rules”. In addition it is not in ‘conflict’ because the SLP conference has very clear devolved responsibility for Scottish Parliament policy. The SLP would not be in ’conflict’ with UKLP rules just because its standing orders adopt a different process to that adopted by the NPF when performing its responsibilities for a different party programme.

 Much of the constitutional argument revolves around the meaning of the phrase ‘may not conflict’ (Chapter 14 UKLP rules).

 ‘Conflict’ is not the same as ‘different’. If this was the purpose of the rule decided by UK conference it is reasonable to ask why have separate SLP rules at all. In practice there are many differences between the SLP rules and the UK rules including: 

·        Objects (SLP Clause 2) omits large parts of UKLP Clause IV.

·        Membership is similar but not identical

·        Delegations to conference (SLP Clause 6) are different:

·        Number of members to delegates

·        Additional sections e.g. ‘local authority party’ (Clause 6(c))

·        Ex Officio members e.g. Labour Group Leaders (Clause 6 (e)(viii))

·        The provisions for requisitioning special conferences (Clause 7) 

In addition we have more recent changes to party structures including the establishment of Scottish Parliament Forums for which there is no provision in any rules. Party HQ advised the Scottish Executive Committee that a rule change was not necessary.

 The general legal approach to statutory interpretation is that seeking the idea is fundamental. Words are to be given “their ordinary and natural meaning” (Selvey v DPP 1970). ‘Conflict’ is clearly a higher level of struggle than ‘different’. By definition it is “a struggle between opposing forces” or “opposition between two simultaneous but incompatible wishes or drives”. None of these definitions reflect the modest additions to procedures that are proposed in the amendments. Nothing is even deleted from the existing SLP or UKLP rules.

 The fact that UKLP Clause X (2) identifies provisions that cannot be altered (candidate selection, objects, membership etc.) by party units - also implies that other provisions can be.

 Conclusion

It remains our position that the constitutional amendment tabled by UNISON Scotland and others is a matter for the SLP conference to decide. It is not part of the UK review and is not ‘in conflict’ with the UK Party rules for the reasons set out above.

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Last modified: 06/12/05