A WEEK has passed since the UK Government published its white paper on the UK internal market and commentators are largely united in agreeing that it poses a significant threat to the current devolved settlement.
The Tories’ proposals will cement the dominance of England in our unequal Union through neutering devolution and putting the Westminster Parliament firmly back in the driving seat in a range of policy areas which were devolved in 1998. Under the Scotland Act all powers except those expressly reserved are devolved. Brexit is not delivering new powers to Scotland. Within the EU Holyrood was bound by EU law in its exercise of devolved powers, but in practice the EU afforded Holyrood quite a bit of discretion. Under the new arrangements, the Tories propose to significantly curtail that discretion. If that’s not a power grab, then I don’t know what is.
Aileen McHarg, Professor of Public Law and Human Rights at the University of Durham, has explained that Holyrood will have to accept new cross-cutting constraints on its ability to legislate to achieve policy goals orientated towards public health and the environment in a variety of areas including food standards. These constraints will be binding on Holyrood but not on Westminster, which, in the absence of an English parliament, legislates for England, so English standards will prevail.
Michael Dougan, professor of European law at the University of Liverpool, has said the proposals could “cripple basic elements of devolution” and magnify England’s natural dominance in the Union.
READ MORE: Experts views on Westminster bid to 'disable devolution'
The white paper’s consultation period is a measly four weeks over the holiday season and legislation will require to be passed by Christmas. An Act of Parliament will be bulldozered through by Boris Johnson’s substantial majority of English MPs. A Legislative Consent Motion will be required but when the Scottish Parliament withholds its consent this will be ignored in the same way that it has been with other Brexit bills. There will be no legal remedy because the UK Supreme Court has already told us that the Sewell Convention has no legal force.
Acts of the UK Parliament cannot be challenged in court. Westminster could abolish the Scottish Parliament if it wanted to and no legal action could change that. But the Tories are not stupid enough to give the independence movement the massive boost that would provide. Besides, they don’t need to abolish Holyrood to get their way post Brexit. All they need to do is to emasculate it and that’s what they are intending to do.
Michael Russell is 100% right when he says the white paper is a devious trick to disable devolution and that we should fight it. But the reality is that because “power devolved is power retained” we cannot win this fight in the context of a devolved settlement which is designed to ensure Westminster’s supremacy. Nor, in the face of Westminster legislation, can we win this fight in the courts.
READ MORE: Michael Russell dismisses Alister Jack's Tory power grab denial
So, what is to be done?
Well, first off, we must not fall into the trap of conceding that the fight against the coronavirus and dealing with its economic fallout precludes pursuing the goal of independence. Politics is plainly not on hold. Brexit is proceeding at full speed. Devolution is under attack. The Tories are continuing to pursue their constitutional agenda. We must do likewise.
The debate about how we protect the powers of the devolved parliament is inextricably linked with the arguments for independence because the reality is that independence looks like the only way to ensure we can make our own policy choices, even in the areas which we thought had been devolved.
How to secure a vote for independence in a way that will result in an outcome that will be respected internationally and therefore will be effective remains problematic. Of course, the route followed in 2014 is the gold standard. But we are in a very different world.
A strategy which rests solely on the assumption that Boris Johnson will grant a Section 30 Order if the SNP win just one more mandate is a risky one. Boris Johnson is no respecter of mandates or indeed laws, as we saw with the prorogation case and his defence of Dominic Cummings’s cross-country Covid rambles. Moreover, no Conservative and Unionist PM wants to be the one on whose watch Scotland is lost, and the loss would be even more ignominious for Boris Johnson because his behaviour and the Brexit he has delivered would be the catalyst for Scottish independence.
For now, it may be a comforting thought that his position is unsustainable, but it’s a hope at best and that hope should not prevent us from looking at what other leverage we might have. I have suggested that we should test the legal argument that is within the competence of the Scottish Parliament to hold an independence referendum, and I was delighted earlier this year when the FM indicated that was a route which might be pursued.
A LITIGATION currently before the Court of Session may enable this to be done and it will be interesting to see the response of the Scottish and British governments to Martin J Keatings’s legal challenge.
While the rise in support for independence is to be welcomed, the battle for winning over hearts and minds should continue with fully developed policy positions on the challenges for Scottish independence in the post-Brexit world.
Dr Kirsty Hughes has argued that the white paper lays down a marker for a future argument that Scottish independence would cut off Scotland from trade with the UK internal market.
This is a thistle which needs to be grasped.
In my experience knocking on doors in Edinburgh, the issue of how to avoid a hard border with England in the event of independence troubles those who voted No in 2014 but who are open to changing their minds in the light of developments. They also want more information on how the process of accession to the EU would work and how long it would take.
On Brexit day earlier this year the FM promised policy papers addressing these issues. It is vital that these are now progressed and published.
We need to make sure we have all the tools necessary to win the arguments for independence. The preservation of Scottish democracy depends upon it.
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