Constitutional constraints on the international activities of non-central governments: Scotland and Québec compared

Abstract

DOES THE CONSTITUTIONAL REGIME established to govern relations between different levels of government in a political community predict whether the non-central governments1 in that polity will be active international actors? Most students of the international activities of non-central governments point to the importance of the structural constraints imposed by constitutional regimes. However, there is also a widespread recognition that whether a non-central government will be active beyond the borders of the sovereign state of which it is a part will largely depend on how the constitutional regime is carried out in practice (Hocking 1986; Nossal 1996). While this is perhaps an obvious conclusion, it has considerable implications for how we interpret the constitutional regime put into place to govern the international activities of the devolved administration in Scotland that came into being on 1 July 1999. For it is clear that those who designed the regime for the system of devolution in Britain anticipated that the new government for Scotland - the Scottish Executive - would be active internationally. While the Scotland Act 1998 is unambiguous that international relations are 'reserved matters,' the various agreements between the central government in London - or, to use the language of the agreements, the UK Government - and the devolved administrations explicitly acknowledge that the new administrations were likely to be active beyond Britain's borders. At the same time, however, the legal/constitutional regime established to govern the international relations of the new devolved administration at Holyrood gives the central government what can be read as considerable power to constrain Scotland's international profile, leading some to wonder what kind of international actor the Scottish Executive will actually be. The purpose of this article is to describe and analyse the legal/constitutional regime created to frame the international activities of the new Scottish government - the Scotland Act 1998, the Memorandum of Understanding (MoU) between the UK government and the devolved administrations, and the separate agreements, or 'concordats,' on relations with the European Union and on international relations that form part of the MoU. As we will show, that legal regime tightly constrains the autonomy of the Scottish government in international affairs. However, by comparing Scotland with other non-central governments, particularly the international activities of the province of Quebec, we will argue that the clear limitations imposed by the devolution legislation, the MoU, and the concordats need not necessarily inhibit the international activities of this new actor in world politics. The regime for Scotland's international activity At a formal level, the legal-constitutional regime for the international activity of the Scottish Executive is ruggedly minimalist, giving overwhelming power and authority to the central government in London. This is in keeping with the general approach of the Scotland Act 1998 itself. This key piece of legislation makes clear that while the Labour government of Tony Blair might have wanted to 'modernise the British constitution', as the 1997 White Paper put it (United Kingdom 1997: 12), the intention was never to create anything close to a federal system, where governments of the various component parts of the polity enjoy a high degree of autonomy vis-a-vis a central authority. Indeed, the 'central authority' in the new British system is highly ambiguous, since there is no devolved administration for 'England,' and as a result the 'central' government in London is de facto the government both of England and of the United Kingdom.2 And under devolution, the central government retains, at least in law, all the cards. In the unambiguous words of the government's 1997 proposals, 'The UK Parliament is and will remain sovereign in all matters . . . Westminster will be choosing to exercise that sovereignty by devolving legislative powers to a Scottish parliament without in any way diminishing its own powers' (United Kingdom 1997: 12). …