Is Devolution Broken?
S35 Orders used to be as rare as Hen’s Teeth, now they’re coming thick and fast. The idea of overturning a democratic vote in Holyrood on devolved matters used to be something to be considered shocking. But now, in the aftermath of the Supreme Court victory and with the pending section 35 order to block the new GRR law it now follows that the Scottish government’s deposit return scheme will also be blocked.
Stephen Daisley in The Spectator tells us: “Alister Jack may be about to take another stand against reckless policy-making at Holyrood”.
The original framework of devolution: that what isn’t reserved is permitted, is over. But it’s possibly worse than that. If you read the British press the sense of an emboldened Unionism is clear. Britannia is certainly unleashed if not unchained.
Daisley asks: “How many more times does the UK government have to save Scotland from its own parliament before we admit devolution isn’t working?”
As a general rule Daisley is more hilarious than threatening. He writes: “Both the DRS and the GRR Bill underscore common themes: firstly, the Scottish government’s addiction to faddish initiatives and being first in the UK to introduce or ban something. Secondly, a Holyrood policy-making process that is ideologically closed and driven by political dogmas rather than evidence or process; and the cross-border implications of devolved policy.”
I mean, is recycling a fad now? But the idea of Tory-rule being dogma-free is truly laugh-out-loud funny, but this is The Spectator. But scribes like Daisley are know talking openly about curtailing devolution and indeed rendering it useless in a way they would never have dreamed of doing before:
“A government at all interested in political coherence would accept that too many powers have been devolved, inhibiting Westminster’s ability to set national policy while accommodating jurisdictional differences. A nationwide DRS would be less burdensome on cross-border trade. A nationwide gender recognition regime would prevent a devolved parliament from unilaterally changing the operation of reserved law. These are just some of the many reasons why Westminster should reform devolution.”
So what does this emboldened muscular unionism want? I’d be really interested to hear from Unionist readers on this. I had assumed that what they want is just the status quo. Nothing should change, everything is fine. Most of all the Union is sacrosanct and mist be preserved at all costs and in the face of any evidence. But now there’s a new dynamic. It’s not just that any referendum must be forever banned – but now devolution must be dismantled.
There are problems with this. The Scottish Conservatives don’t really exist outwith the Holyrood chamber. If they want to destroy the institution they resisted coming into being they will be doing an act of serious self-harm. Secondly, if the Unionist plan is now to attack Holyrood there are two further problems. This may enflame the progressive and wavering No voters who might see this as an all-out attack on Scottish democracy, which it clearly is. Further, if you are seriously going to say to 50% of the electorate who support independence that there is no option to express this and you are going to strip-away devolution there is likely to be real-world consequences of revolt and disturbance.
Would Westminster be dumb enough to ignite an insurrection reminiscent of Northern Ireland, what if the Irish Republicans were to kick off at the same time? Could Westminster and it’s armed forces really cope in that scenario? Obviously not.
What then?
Effectively all they can do is try and keep the status quo and hope to god it’s more rabid constituents stay locked in their boxes or dungeons. Mind, there is a case for more muscular approach to Indy, nothing is ever going to change until and unless we the Scottish nation show we have teeth which we are willing to bare and use.
The DRS regs passed in 2020. I thought UKG only has 4 weeks to issue a s35 order?
So we’re just ignoring the bit about an exemption being required and an exemption not being requested by the micro minds in charge of the DRS?
And we’re ignoring the pitiful take that a different definition of male and female in Scotland and England has no impact on equality legislation at UK level.
I despise WM and the UK govt but I refuse to be blind to the facts. The Scottish government’s hubris and incompetence gave those useless gits an open goal and, unlike the Scottish govt, they aren’t shot shy and didn’t miss.
That’s the difference. When you refuse to throw an actual punch and prefer to lead with your chin, you’re getting taken out feet first with nobody to blame but yourself.
“That’s the difference. When you refuse to throw an actual punch and prefer to lead with your chin, you’re getting taken out feet first with nobody to blame but yourself.”
“Scotland will not be taken out of the EU against our will…” bleat-bleat-bleat’n’repeat ad nauseam
I could have told you on 19 September 2014 that the unionists would be coming for devolution.
The mask was taken off the day after Brexit.
We’re in a race here, between independence going forward and devolution going backwards. One thing we cannot do is wait until 2050.
We’ve got one more full WM parliamentary term and then that’ll be that – Scotlandshire here we come, northernmost county of Greater England.
There was once an idea, I believe acceptable in some Unionist circles, that Devolution would allow useful pilot schemes of policy-making to be tested in Scotland, Wales and Northern Ireland, and if successful, applied more widely across the UK. After all, Conservative Prime Minister Margaret Thatcher imposed such pilot schemes in the Poll Tax (‘Community Charge’) etc, and on reflection it would be preferable if these schemes were self-adopted to avoid backlash against Westminster. That is, Devolution was a way for the British Empire/UK to dabble in evidence-based policy formulation. Of course, the Scottish Parliament was designed in expectation that the SNP and other opposition parties to Westminster would not be able to dominate for a successive run of elections.
So on that basis, Devolution is working just fine. Some initiatives will be expected to succeed and be adopted by the UK, others fail and be discarded.
But what is most important to recognize is the vast area of policy which is off-limit to democratic influence even at Westminster level. The Ultra-Reserved and Unknown-Reserved categories, typically under Royal Prerogative and/or the secret, unaccountable, unwritten imperial-state (in the USA ‘deep state’, or what Richard Norton-Taylor calls ‘permanent government’ in the UK). Ultra-Reserved would be most foreign, security, espionage and much military policy; Unknown-Reserved would be all the policies never formally recognized, like the British colonial and neocolonial programmes, royal politicking and running of puppet regimes. Scottish Independence holds out the flicker of an opportunity to bring these areas of public policy finally blinking into the light after centuries in the cave of British Imperial shadows.
Daisley isn’t exactly the brightest of buttons.
This is true
Given that the bottle deposit scheme is now likely to be changed by SNP ministers due to serious complaints that were there all along but ignored by NS, and the GRR was clearly in contradiction with existing UK law (and also now opposed in its current form by two of the three FM candidates for reasons that were also there all along but were quashed), the premise of this article is not very strong if these things and the associated S35s are the main rationale for devolution being ‘broken’.
Bad law is bad law and is at the root of both of these problems. Nationalism in general can take on the form of willed paranoia, seeing snakes in the grass everywhere and actually engineers situations to engender that paranoia. Unionism (as a form of British nationalism) can do the same. It is like children in the playground. Most people would like grown ups to come back in the room.
I firmly believe that independence for Scotland can and will be achieved through diplomacy, but it needs to be of the concerted sort, not the grandstanding, empty, rhetorical, paranoid cant we get so much of. How did AS secure the 2014 referendum? By clever, patient diplomatic means. much of which was behind the scenes – he must have built trust. NS did not have that capacity. Do any of the FM candidates?
Simply saying Westminster will NEVER allow another referendum, let alone independence (see George Gunn and numerous others) is defeatism and a retreat into more manufactured anger and a wallowing in sweet, poetic despair.
@Niemand, from my viewings, I also got the impression that the GRR was bad law, based on too-fast, too-far, too-fake foundations. Law should be cohesive, but these ideological underpinnings are not.
I would suggest we need to scrutinise the advocacy groups in much the same way as Bella has done for other political struggles. In Democracy for Sale: Dark Money and Dirty Politics (2020, 2021), Peter Geoghegan writes (Ch10 Making Europe Great Again) that USA-based right-wing Christian organisations are funding anti-LGBT Christian groups in Europe. Obviously speaking out against same-sex marriage, abortion, contraception, and saying climate change can be solved through prayer, could be extremely lucrative. Where does the Free Church of Scotland get its funding from, in these days of declining church attendance?
Equally, what about these pro-gender-recognition advocacy groups? Who are they, where do they get their support and funding from? I gather there are a few skeletons popping out of closets there.
Like children in a school playground, adults engaged in the political playground often pick sides and gang up against opposing groups. This makes you bigger but not cleverer. There is a really problematic nature of allyship where the faults of allies are plastered over, and people take it upon themselves to speak and act on behalf of others clueless of their actual beliefs and ignorant of the diversity within, and history of, their own movements. These digital or street stormtroopers can derail rational political discussions, but can also be used by politicians to gain power or pass legislation.
I’m not interested here in the conservative criticism (which has playbooks of empire and hierarchy to employ: divide and rule, cacophony, bluster, misdirect, attack and delay) but more of this kind:
“Criticism of the term may also be found among supporters of the broader social justice and Black Lives Matter movements. Some critics say that the practices and behaviors associated with allyship do not reflect sincere intentions and serve primarily to validate their practitioners. Similarly, Emma Dabiri has said that ‘Allyship offers charity whereas coalition is more about solidarity,’ and that allyship’s emphasis on the efforts of a privileged group to help disadvantaged groups reflects a ‘paternalistic attitude.’ Other concerns have stemmed from the degree to which the rhetoric of allyship is perceived as ‘performative’ or insincere.”
https://en.wikipedia.org/wiki/Allyship#Criticism
but I know too little about it as a modern phenomena.
The more I look into these issues, the more questions arise. We could really use a map (I repeat my polite request for an infographic of the L*G*B*T Constellation). Too often the fabricated (for political movement purposes) notion of the ‘LGBT Community’ has been used to imply a broad consensus on opinion, lived experience, practice, fact and ideology which does not exist, probably never has existed, is at best patronising, if not bigotry. It is like saying ‘the Christian Community’ and expecting them to think all the same way and want the same political goals.
Yes, poetry is often an indulgence, but it can be extremely dangerous to try to put poetry into law. Poetic ‘truths’ are merely falsehoods dressed up. It is poetically true that Charles Windsor is a rightful king anointed by God, after all.
Yes I agree pretty much wholeheartedly. The thing about allyship is that I think I am right in saying that one the reasons it has become a thing rather then ‘solidarity’ is that with certain causes e.g. racial justice it has come to be perceived as the domain of those discriminated against (and perceived as such by them), with others e.g. white supporters, their actual role is supportive i.e an ally to the cause but not an active participant in finding ways to try and reduce the injustice. This is based on the idea that without the lived experience you cannot really understand the effects of racism, as well as the idea that all white people are, in a sense, part of the problem and will inevitably ‘take over’ the cause. This mitigates against solidarity as that suggests some kind of agency rather then the totally passive, allyship..
As for the GRR and Bella, that is clearly not going to happen as the editor has made clear on another thread. The rationale given for this is the commonplace response which is essentially whataboutery and ‘nothing to see here, move along’.
Sorry – just to get this straight you are comparing the dark money that funded Brexit and the Koch money that funded Spike and its network and you think that I should be exploring the money behind the GRR? I’m not sure if I’m following this right.
Personally, I was simply talking about the decision not to discuss GRR at all, from any kind of critical perspective. I have no specific knowledge about shady financing but the concept of institutional ‘capture’ is clearly not made up.
I have discussed GRR and the debate about trans issues many times – the last tine I commissioned a series on this topic it descended into such a toxic binfire the whole series had to be cancelled. I personally think the subject has a completely disproportionate amount of focus and would rather spend (editorial) time and energy on issues such as: poverty, housing, ecology, power, state violence, climate and how we can remove our elves from the hell of living within the British state.
@Editor, I don’t know exactly what you would find, that is what investigations are for. I am more interested in ideological underpinnings than funding, and the wider links between L*G*B*T issues and (for instance) autism, consumer culture, gaming, social media, performance, trauma, misogyny… At the moment, I don’t have a map.
I believe some of the gender identity categorisation came from USAmerican academia, for instance. We should be aware that academic categories can be quite problematic when applied outside academic contexts (personality types, the IHRA definition) especially if incorporated wholesale into law.
But as a general point, do you doubt that the same people who funded and armed both sides in the Iran-Iraq War, who bankroll the campaigns of both Republican and Democrat parties in the USA, would fund contesting sides in a culture war?
And if wellness is an industry, what’s this market worth? Some of the slogans seem identical, like “be who you want to be”. Giving fake, cheap or limited empowerment to atomised individuals is a tried and tested way of weakening collective action.
Goodness knows, we import misogyny from nearly every direction, in multiform manifestations, some so normalised that most people hardly seem to notice. Martina Navratilova, staunch critic of East European Communism, reportedly said one rare thing in its favour was that the people cheered men’s and women’s teams equally. Yet here we are.
I agree with everything on your priorities list: “poverty, housing, ecology, power, state violence, climate and how we can remove our elves from the hell of living within the British state”, although you could add several other categories, and on the dangers of distraction. Yet apparently the British state is not hell on Earth for many people (or elves) in Scotland.
Thanks for this.
“Giving fake, cheap or limited empowerment to atomised individuals is a tried and tested way of weakening collective action.” Yes, very true.
“But as a general point, do you doubt that the same people who funded and armed both sides in the Iran-Iraq War, who bankroll the campaigns of both Republican and Democrat parties in the USA, would fund contesting sides in a culture war?” I don’t doubt that though I dont believe this to be that manufactured or controlled. Though I do agree its in elite interest to see progressive and liberatory movements split and divided, yes.
It must have been before my time then. I do remember one pro selfID type article that sadly also descended into the usual insulting attitude to the opposing view, but that is all. I understand the reticence but should we avoid a topic purely because it is controversial and will create heat? To be clear though, either way, I respect you right as editor to edit as you see fit.
I think the reason this particular debate does exercise many people quite strongly is that though it may not affect them materially that much (though in fact in lots of smaller insidious ways, it does) it does in fact, affect everyone in quite a fundamental way as it requires all of us to totally rethink what we are as human beings. And if we don’t go along with that, we can find ourselves shut out of quite a lot of things (unless we keep totally quiet about it) since so many institutions now see it as essentially a requirement to be on board.
If you don’t recognise gender as a ‘thing’ but see it a construct, then the whole premise of the philosophy behind things like self ID is based on a false premise or at best, based solely on feelings. Law based on feelings is a pretty odd concept, though we see more of this kind of thing generally with regard, for example, to feeling ‘offended’ by ‘hate’. But the law is very bad indeed at coping with such vague conceptions.
Personally I reject the notion I am ‘cis’, because I do not ‘have’ a gender, I simply adhere (or not) to societal gender norms of the time I live in. This is not an abstract philosophical idea but very real to me – it is my identity. I am male, that’s it. I respect others’ identity who think differently about gender, their gender, but if that does not go the other way, people will reject it in the end as being fake – if self identity matters, then it must matter for all.
This matters politically because people will withdraw their votes from a party position that ultimately seems absurd to them and recent interviews with NS regarding the convicted rapist Bryson, revealed that absurdity head on, and it was noticed and will continue to be noticed. There has to be a coherent approach and the SNP did not have one, despite their claim to have looked at it very carefully – they hadn’t, they just did what they planned to do all along.
And if the SNP is still seen as the main vehicle for independence, why would this not be questioned along with other important matters (and of course I totally agree about the major material concerns you list)? Significantly two of the three SNP leader candidate are not in favour of their own SNP policy on this topic. You have to ask why at the very least, and one of the answers beyond their own personal belief is that public opinion has been shown to be with them.
The politics of this are clear – the Tories don’t like the current devolution to Scotland and Wales (and the Labour Party are, to say the least, unenthusiastic about defending it, even though they were responsible for the foundation of most of it).
The Tories had no problem with devolution for 50 years in the north of Ireland (1922-72) even though the decisions of the NI Parliament meant sectarian discrimination against catholics, the most blatant gerry-mandering of electoral systems ever seen since suffrage was extended, and a militarised police force that when it wasn’t beating and shooting catholics itself stood by as pogroms were conducted – truly it was ‘A Protestant Parliament for a Protestant People’ or as Michael Farrell titled it ‘The Orange State’.
So convinced were the Tories that the NI Parliament had the right to legislate unreasonably that even when they were forced to abolish it as a civil war developed and the unionists refused to give up absolute power, the Tories at Westminster still carried out its death wish – the very first referendum on constitutional matters in the UK state, ironically, the sectarian headcount that was the 1973 ‘Border Poll’, a poll so outrageous it was boycotted by the Catholic population.
However, I think there is a little confusion over the various constitutional and legal mechanisms that the Tories (passively supported by Labour at Westminster) are currently using to try to roll back devolution in Scotland (and Wales).
Section 35 refers to unprecedented use of a clause in the Scotland Act 1998 to prevent a Bill of the Scottish Parliament being struck down before it receives Royal Assent and becomes law. There is a window of four weeks between the passing of a Bill by the Scottish Parliament and it receiving Royal approval, when the UK government Secretary of State has the absolute power to strike it down by virtue of an ‘Order’. Such action is draconian and total. While the Scottish Government threatened to challenge the use of it over the Gender Recognition Reform (Scotland) Bill passed by two thirds of MSPs in the courts, this is unlikely to succeed – the Scottish Government would need to show that a Secretary of State used their ‘Crown Powers’ as a minister completely unreasonably. ‘Reasonableness’ is actually a well established ‘common law’ principle of the English courts in particular, that put limits on discretionary powers by public bodies (including individuals acting as ‘Ministers of the Crown’). The principles were established in a well known case in Administrative Law in 1947, referred to in shorthand as ‘Wednesbury’ (after the town council, ironically near my origins and whose public libraries I used to visit, that was the then name of the local authority whose actions on cinema licensing were reviewed by courts). The problem about this is that this is all ‘judge-made’ law called “Judicial Review”, and if you can find a judge who defends democratic principles first, and puts the arbitrariness of ‘ministers of the Crown’ second, you are doing very well indeed. The court would have to find that Alister Jack behaved so unreasonably that no ‘reasonable person’ could envisage doing his dirty deeds. But given that two out of three candidates for SNP leadership, as well as a leading barrister holding an SNP Westminster seat, the entirety of the Alba Party, the Labour opposition at Westminster and uncle tom cobbley ‘n all think that Jack is being ‘reasonable’ it is hard to see this one having many legs (though that doesn’t mean the Scottish Government shouldn’t test the legal framework as far as possible).
Section 35 attracted attention because the more usual mechanism for the UK government to challenge Scottish legislation is under Section 33 where a referral is made to the UK Supreme Court for a decision instead. Such a measure was used by the UK Supreme Court to stop two Bills from the previous Scottish Parliament session becoming law (on incorporating conventions on local government and children’s rights into Scottish law). The use of Section 34 of Schedule 6 is yet another part of the Scotland Act where the chief legal officer of the Scottish Government was able to refer the matter of a forthcoming Bill on an independence referendum to the UK Supreme Court last year.
However any attempt to block the Deposit Return Scheme has nothing to do with Section 35 or the Scotland Act.
The legislation for the scheme was actually passed in 2009, by MSPs all parties in the Scottish Parliament, as the Climate Change (Scotland) Act 2009. It received Royal Assent without a Section 35 being issued – in fact there was a Labour Secretary of State at Westminster then and Labour had supported the Bill (the Tories also did, their spokesperson saying in the final debate ‘I am confident that we have produced a good piece of legislation’).
Under section 84 of the 2009 Act, a Scottish Government minister has the power to introduce statutory regulations governing any ‘Deposit & Return Scheme’. ‘Section 35’ is completely different and concerns Bills, not Regulations issued by a Scottish Government minister under an existing Act.
What the Tories are threatening to invoke over the DRS is approval of the Regulations under sections of the UK Internal Market Act 2020 – a post-Brexit mammoth piece of legislation that enables the Westminster government to trample over devolved actions in the name of preserving the ‘internal market’ across the entire UK state. This approval is basically needed because a bottle of water sold in Scotland will cost 20 pence more than the same bottle produced by the same manufacturer and sold by the same retailer in England (or Wales or NI). Of course the bottle only costs more on initial purchase, by returning the bottle and collecting the 20p the buyer eventually pays the same cost. However permission is needed under the UK Internal Market Act and it is a major problem of the Scottish Government that they had not obtained this permission before the Regulations were attempted to be enforced – giving the UK government an easy opportunity to strike down yet another facet of what was previously assumed to be devolved.
The UK Internal Market Act, Section 33 and Section 35 of the Scotland Act and numerous other pieces of legislation and ‘Crown Powers’ can be used to attack devolution. This is because in the absence of a written constitution, as in most federal states, the doctrine of Westminster parliamentary sovereignty and the use of ‘Crown powers’ by Westminster ministers mean that despite all the highfalutin claims to devolution being permanent, it is no such thing. Therefore constant attack is to be expected. The possibility of a Westminster Parliament giving up the doctrine of sovereignty and establishing all the constraints of a written constitution is zero. The idea that we can have federalism and a written constitution in the UK state is actually more difficult than any other option for the establishment. Therefore it may seem to be counter-intuitive to some, but the only way to defend devolution is through independence.
Thanks Michael