[What follows is the text of an editorial in today’s edition of The Scotsman:]
The devolution settlement put together by Donald Dewar in a few short months after Labour’s general election victory in 1997 contained a number of potentially problematic ragged edges.
In health, for example, not everything was devolved to Edinburgh. A range of issues such as abortion, embryology and genetics were judged to be too morally sensitive. These were reserved to Westminster.
In criminal justice too, there were exceptions to the wholesale devolution of criminal justice, including drugs, firearms and terrorism legislation.
This last one in particular has posed a challenge to relations between the Holyrood and Westminster administrations, especially in the years since 9/11, when a new and intense focus was brought to ‘the war on terror’.
The problem is that the line between anti-terrorist measures and domestic law enforcement is by no means clear-cut in every instance.
Increasingly, the fight against terror atrocities has involved impinging on the civil liberties of the entire population, with implications for wide areas of how the law operates on a day-to-day basis. The distinction between anti-terror law enforcement and normal criminal law enforcement has sometimes become difficult to ascertain.
This is more than of technical legal importance. In a democracy, it matters where accountability lies. Where there is confusion about which legislature is responsible for such important matters, political and public scrutiny can become lax. Clarity is required if we are to know which ministers to hold to account.
Which is why Alex Salmond is right to register his displeasure as First Minister at a lack – if indeed there has been a lack – of discussion and consultation between the Home Office and the Scottish Government on proposed new anti-terror measures to combat British-born jihadists returning home from Syria and Iraq.
It is imperative that any such measures are fully discussed with the authorities that would be charged with implementing and enforcing them. That would include Police Scotland, the Crown Office and cabinet secretary for justice Kenny MacAskill.
We have been here before. In 2007 the SNP and Scottish Labour were united in condemnation of Tony Blair’s attempt to do a diplomatic deal with Colonel Gaddafi that included the early release of the Lockerbie bomber from a Scottish jail.
On that occasion Mr Salmond and his predecessor Jack McConnell stood shoulder to shoulder and said Mr Blair had no constitutional right to do any such thing.
Of course, Mr Salmond may currently be motivated at least in part by a desire to make a point about Westminster’s attitude to Scotland, to boost the campaign for independence.
That having been said, there is an important point of principle here, and Westminster politicians would do well to heed it.
[An account of Tony Blair’s “deal in the desert” can be read here.]