Most people will just be bored to tears by the Supreme Court proceedings and its turgid, dire, over-complicated nonsensical legalese. But it’s important. As Iain Macwhirter puts it succinctly: “The Sewel scam makes a nonsense of Kezia Dugdale’s call for federalism in UK. Who’ll believe it? The Scotland Act is toast.”
For those of us confused by what’s going on here, Lallands Peat Worrier is (as always) is a great scene-setter:
“Where this gets controversial, however, is when we turn to the so-called “Sewel convention”. Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood’s powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved.
But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn’t the permanence and privileges of Holyrood also receive some legal protection?
In the wake of the 2014 independence referendum, the Smith Commission report agreed that”the Scottish Parliament will be made permanent in UK legislation” and that the Sewel convention should be “put on a statutory footing”. Both of these commitments were reflected in sections one and two of the 2016 Scotland Act. But did these “constitutional protections” really make much difference?”
No, not really.
So what are the practical implications?
Stephen Paton (@stephenpaton134) lays out eight conclusions. “Scottish Labour’s attempt to argue for a new “Act of Union” (or a federal UK) can only backfire on them for the following reasons”:
1) They already promised it in 2014 and didn’t deliver. In fact, they were instrumental in blocking key powers being devolved to Scotland.
2) They’ll argue that too much power lies with too few in one part of the UK, and accidentally build the case for Indy when nothing happens.
3) Folk are tired of Labour doing gimmicky stunts instead of being a decent opposition, like scheduled resignations after the Brexit vote.
4) Soft Yes folk who may have stuck with Labour will think it unfair they are trying to kill Indy with legislation in the face if Brexit.
5) Trying to “out-union” the Tories to get back support after inconsistent messaging on EU/single market support makes them look desperate.
6) Failing this kills any chance of them being able to whip up a 2nd “Vow” during
#indyref2, meaning it’ll need to come from the Tories.
7) It makes clear Labour are only interested in more powers for Scotland when A) the Union is threatened or B) it can win them back support.
8) And finally, folk already believe Scottish Labour are incompetent. This farce will just confirm it.
In short, it just seems opportunist. It’s grandstanding without principle.
Peter Arnott calls it a game-changer for Labour and the LibDems:
“There may not be any legal novelty in yesterday’s argument from the UK in the Supreme Court that Scottish Devolution is only a “whenever we feel like it” kind of thing, but it does reinforce the yawning cultural gulf in perception that has opened up between the Imperial and colonial administration of power in these islands. It should really be a game-changer not so much for Nats for whom it’s mere confirmation of “their” contempt and “our” irrelevance, but for the architects of devolution, for Labour and Libdem, this should represent a conceptual body blow from which it is nigh impossible to recover. It may be an accident that Kezia Dugdale is today echoing Gordon Brown’s call for a renewed and revised and more equal Union settlement, but surely even she can see that after the true status of our pretendy parliament was laid on the line yesterday, that such talk rings as hollow as the canyon that is opening up between us.”
Amongst the serious constitutional commentary, some, sadly, have added slapstick soundcloud:
But if the Scotland Act is really toast and the F word confined to the bin, it’s not all a positive outcome for indy forces. Pat Kane senses an emboldened Unionist shift:
“Watching the Tory govt’s lead advocate for Scotland, Lord Keen, in his performance in the Brexit case before the Supreme Court, was to see the Scottish Unionist establishment in its fullest pomp (Keen is also the Scottish Tories party chairman, who likes to hire castles and berate his MSPs for their mediocrity). But also, it seems to me, in its self-subverting arrogance too. In order to do the Tory Brexiteers bidding, Keen ripped to pieces the rags of the “respect” agenda towards the Scottish parliament – by making brutally clear that Westminster command will always take ultimate precedence over any determinations coming from Holyrood.
There is some signs that the Supreme Court has seen this. When Keen noted that the Sewel Convention, requiring that Holyrood gives legislative consent to any WM changes in its constitution, was merely a “self-denying ordinance”, Lord Sumption pointedly asked how it could be merely so, if it was written into the law of the Scotland Act? The preening and word-splitting thereafter from Keen could only have been improved on with a full periwig from 1707.
Cue outrage and told-you-so’s from constitutionally-aware Indy supporters. But as with so much of the current Brit-farce, my anxiety is that the ambient Western nihilism about any kind of representative politics is reacting powerfully with a rising Unionist recalcitrance, especially towards the ambitious politics of independence. “Don’t bother me with your demanding dreams and aspirations! Enough chaos and disruption!”
So the spectacle of devolution dissolved by the acid tongue of an Edinburgh advocate may provide a good canvassing line for the doorsteps, or the next pub conversation. Yet I am increasingly doubtful – and the stuttering Indy poll ratings may indicate this – that the tinsel show of contemporary and “official” politics is really that effective, at least in so far as it triggers sustained collective resistance in Scottish life. The constitution is one thing; but constituting power and confidence, in the everyday realms of Scottish life, is quite another.”
This may prove to be an end point for Kezia Dugdale, who’s advisors presumably expected this to create some much needed gravitas and even to present her as a player on the UK stage. Sadly it did no such thing, but we can expect #ActofUnion to be trending for some time as the complete failure of the case for federalism is exposed and stark choices revealed.