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by Tom Freeman
18 May 2018
Scottish devolution: consent is everything

1997: SNP, Labour and Lib Dems formed a constitutional alliance - PA

Scottish devolution: consent is everything

The Scottish Parliament has refused its consent to a major piece of UK legislation, by 93 votes to 30.

The SNP were joined by Scottish Labour, the Liberal Democrats and the Greens in their rejection of the UK Government’s latest compromise over the repatriation on normally devolved areas from Brussels.

This left the UK Government with a tricky choice: amend the EU Withdrawal Bill or press on with it without the consent of Holyrood.

If it chooses the former, then it faces further divisions within the Conservative Party and it will have implications for Wales, which has already given consent to the offer as it stands.

If it chooses the latter, we are in uncharted territory as it will be the first time the will of the Scottish Parliament has been ignored by the British government.

Legally, Westminster can overrule Holyrood. But it has never had the political courage to do so before.

The situation is not entirely without precedent. A number of consent motions have gone through Holyrood and not all of them gave consent.

For example, in 2011 the Scottish Parliament used a legislative consent motion to influence welfare reform where responsibilities could be considered devolved competence.

That time, however, like all LCMs before it, amendments were subsequently made to the legislation by UK ministers. 

This time, the Conservatives are isolated in both parliaments as other parties backed the Scottish Government’s position.

Following the vote, the initial signs from UK ministers were that they were prepared to trigger such a constitutional crisis.

In a BBC interview shortly after the vote, Scottish Secretary David Mundell said: “It’s the first time it has happened but it was envisaged in the devolution settlement that there might be circumstances where consent wouldn’t be given, and that circumstance would permit the Westminster government to proceed with legislation on that basis and that is what we intend to do because the bill is already in the system.

“There will be an opportunity for further debate and discussion in parliament, but I also hope there will be the opportunity for debate and discussion between the two governments. I still think we can resolve this issue and that remains my objective.”

At Prime Minister’s Questions, Theresa May said, “of course we’re disappointed” the Scottish Parliament had refused its consent, but stopped short of agreeing to concessions, pointing to the fact the Welsh Assembly had given consent in a vote on the same day.

“I think this is a reasonable and sensible way forward,” she told MPs. “The Welsh Government and now the Welsh Assembly, including Labour and Liberal Democrat members, agree with that. I think it’s right we go ahead with measures which not only respect devolution but also respect the integrity of our common market as we work out the long-term solution.”

Theresa May, of course, has ignored the will of the Scottish Parliament before. When Holyrood voted last March to hold a Scottish independence referendum, she replied, “now is not the time”.
This time, though, her fellow unionist parties have backed the SNP.

It’s a “crying shame” to see Labour and Lib Dems “aligning themselves with the separatists” in Scotland, said Murdo Fraser.

Later in PMQs, Tory MP and Brexiteer Ross Thomson said the two parties were “midwives of the SNP’s crusade” to tear up the Union. 

For Labour and Liberal Democrat MSPs, it was clear that Scotland was a separate case from Wales because of the specific nature of devolution north of the border laid out in the Scotland Act of 1998. 

Glasgow MSP Pauline McNeill said: “Donald Dewar was the champion of devolution and, unlike the Welsh model, the Scottish model was designed to state which powers were reserved.”

Fellow Scottish Labour MSPs including  leader Richard Leonard called for cross-party talks akin to the pre-Holyrood Constitutional Convention which had established the model of devolution in the first place.

Holyrood’s Finance and Constitution Committee had advised the proposed Clause 11 of the EU Withdrawal Bill represented “a fundamental shift in the structure of devolution in Scotland”.

Clause 11 was replaced more recently with Clause 15, which reworded the restriction on the legislative competence of the Scottish Parliament. A ‘memorandum of understanding’ between the two governments was added to the bill whereby both would commit to mutual collaboration.

Liberal Democrat Tavish Scott said everything had happened but little had changed. 

“There has been some movement on the clauses that have been discussed, but there has not been enough,” he said. “We want the Scottish and UK Governments to continue to work for an agreement. People deserve much more than Trump-style diplomacy from London.”

The changes certainly weren’t enough for the Scottish Government.

Brexit Minister Michael Russell predicted the Conservatives would exercise a veto.  

“What is being proposed is that the Tories in London, using the votes of the Democratic Unionist Party, will hand the power of veto over the decisions of this elected parliament and government to the Scottish Conservatives — a minority within this chamber,” he said. “That would be the effect of what took place, because, for seven years, the Conservatives would be able to veto anything that we chose to do.”

Scottish Conservative MSP Donald Cameron said the Scottish Government’s demands had already been met by the UK Government, and that “the power grab myth is the greatest sham of all”.
“For the SNP, it is not about identity of purpose; it is about the politics – it always is – and the politics point in only one direction,” he said.

“As ever, the SNP’s eyes are on a different prize. This is just the latest move by the SNP in its game of constitutional chess – its latest gambit aimed at agitating the Scottish population towards a different outcome.”

At an event run by Reuters news agency in London, Nicola Sturgeon said the ball was in Theresa May’s court.

“If the UK Government decide … to carry on regardless, they will be demonstrating we were right not to take this on trust,” she said. 

She also confirmed independence would remain a proposition.

“I’m not sure that independence will ever be off the table until it is realised,” she said, adding that the timescale will depend on the progress of Brexit.

But if the game is purely a political one, then it is one that favours the SNP, according to Nicola McEwen, politics professor at the Centre on Constitutional Change at Edinburgh University, because of the key argument about decisions being best made by the people they affect.

“The SNP has to wait and see what happens with Brexit,” she told Bloomberg. “If the constitutional issue becomes about devolution and not about independence, then that helps them and not the Conservatives. It becomes about self-governance.”

The game has to play some legal rounds first. 

Even if the UK Government does decide to ignore the will of the Scottish Parliament, whether the UK Government’s EU Withdrawal Bill or Scotland’s emergency ‘continuity bill’ becomes law hinges on a legal challenge to the latter being heard at the Supreme Court in July.

Designed to pre-empt exactly this scenario, Holyrood’s presiding officer Ken Macintosh warned the legislation falls outwith the Scottish Parliament’s remit, but Lord Advocate James Wolffe said it had been “carefully framed” to be in line with both UK and EU law.

If politicians cannot provide clarity before then, the constitution is in the hands of a judge.

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