The elephant’s bad dreams

Sunday National, 28th March 2021.

“Thatcher Thatcher, milk snatcher!” The former Prime Minister never quite shrugged off the soubriquet she earned in 1971 when, as education secretary in Ted Heath’s government, she decided the free market should decide whether Britain’s children got a carton of milk in the morning. Many went thirsty.

When Holyrood unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, it was a feel-good moment in the stormy days which concluded the Scottish Parliament’s fifth session. The legislation brings the rights of children home, pulled down from the high reaches of international law into domestic law and enforceable in Scots courts.

As Bruce Adamson – Scotland’s Children and Young People’s Commissioner said last week – “it takes the international promises we’ve signed up to and gives them real force in Scotland.” He described the Bill as “the most important thing Scotland can do to protect the rights of children and young people.”

Well bad luck, nippers, because this week, Alister Jack wrote to John Swinney. The Secretary of State for Scotland has concerns. He’s been in touch with the lawyers. More constitutional litigation looms. His objection? “The UK Government respects the Scottish Government’s right to legislate on this matter in line with its responsibilities under the devolution settlement,” he says, but “what it cannot do is seek to make provision that constrains the UK Parliament’s ability to make laws for Scotland.”

The Tory MP for Dumfries and Galloway also has problems with the European Charter of Local Self- Government – steered into law by independent MSP Andy Wightman, reflecting his long-standing interest in strengthening the local autonomy. This Bill, Jack says, will similarly restrict the ability of the UK government to pass laws on devolved matters.

And for once, the UK government finds the Scotland Act working against them. Under section 33 of the devolution framework, Boris Johnson’s administration has just four weeks from the passage of legislation through Holyrood to snatch it out of the Queen’s postbag and to send it off to the UK Supreme Court for inspection. Alternatively, section 35 of the devolution framework actually gives Alister Jack the power to order Holyrood’s Presiding Officer not to submit legislation to the Queen for royal assent.

He can do so on two bases. Firstly, if he thinks it is incompatible with the UK’s international obligations, or alternatively, if he “has reasonable grounds to believe would have an adverse effect on the operation of the law” on reserved matters. Like the section 33 power, if Jack wants to do this – he must give Ken Macintosh his marching orders within the month or lose the opportunity. The first power was used to spike Holyrood’s Brexit legislation in the Supreme Court in 2019. The second power has never been used. Well, there’s a first time for everything.

The Children’s Rights Bill passed on the 16th of March, so time’s already a-wasting. Thus far, Jack has only sent John Swinney a menacing letter indicating he intends to use the next month “to make a decision on whether” to do either of these two things – but given the muscular unionism now being espoused by Whitehall and finding an ascendancy in official Tory Party thinking on how the union is to be saved, why wouldn’t he do it? In Britain, power devolved is power retained. Every opportunity must be seized to remind Holyrood of its constitutionally subordinate and derivative position in our blessed constitution.

While this might be the stuff to wake up your average Tory MP from his late-afternoon claret-coma in the House of Commons – in Scotland, here and now, the timing couldn’t be worse for Jack’s Tory party colleagues. Slap-bang in the middle of the Holyrood election campaign which can act as much as a referendum on the UK government as the Scottish one – two worthy reforms risk being stymied for months by a strike of the Secretary of State for Scotland’s pen.

Jack will no doubt try to persuade folk that the issues here are mainly technical, affecting only a small part of the Bill, and all he’s trying to do is police the legitimate border between research and devolved matters in good faith – but that’s a complex political sell against the backdrop of an election campaign about who governs Scotland, and whether or not we want the not-so-hidden-hand of the Her Majesty’s ministers in Whitehall anywhere near the business of our parliament. “UK Government tries to block Children’s Rights Bill in Supreme Court” has a brighter, clearer ring to it.

Jack should try explaining the detail to Scotland’s youngsters – many of whom will have the chance to vote in this election. In Scotland, we see 16 and 17 year olds are more than capable of making up their minds for themselves about how their country should be governed. It is also worth noting that the Scottish franchise has grown in other ways since the 2016 election. This is the first campaign which will see not only EU citizens resident in Scotland able to exercise their franchise – but also all of the country’s permanent residents, including those with recognised refugee status who have been granted asylum here.

Contrast this with a UK government which believes children and asylum seekers should know their place – not at the ballot box, but suspended in a cage over Priti Patel’s desk, saturating the Home Secretary’s office with the invigorating pitter-patter of their tears. Whitehall sources confirm the possibility of recruiting the Childcatcher from Chitty-Chitty Bang-Bang for a Home Office secondment is under active consideration. Patel’s review of the UK’s immigration and asylum rules promises to be as savage as you’d expect. The contract Alister Jack has taken out on these two Bills is a foretaste of things to come. As Douglas Ross told his party colleagues at a recent conference, “the case for independence is being made more effectively in London than ever it could in Edinburgh.”

That we’re getting more and more used to this kind of legal threat from the UK Government is also powerful evidence of how unwieldy the devolution legislation has now become. In the tinkering attempts to extend Holyrood’s powers since 1998, complexity has built upon complexity. With the collapse of our EU membership, and the shared standards we used to sign up for, superintendence over great swathes of policy is now exercised out of Whitehall, restricting the Scottish Government and Scottish Parliament’s room for manoeuvre further and further.

The problem isn’t an isolated one. It isn’t technical. It shapes what we can and cannot do about the many problems this country still labours under. Take one. Thousands of people are dying in this country as a toxic compound of poverty, opiates and benzodiazepines kill more and more people in our cities and towns – and Whitehall shrugs when presented with potential solutions, and reminds you it is a reserved matter.

Instead of talking about whether policies are good or bad, deciding whether they’re really the medicine the country needs, the devolution settlement now snarls up the country’s decision-making in complex and contradictory legal frameworks of reserved powers, exceptions, and exceptions to those exceptions – with the Secretary of State patrolling the perimeter with the advocate general for Scotland trotting at his heels.

If you feel impatient with this – and I don’t blame you – then so do increasingly tetchy elements of the Conservative Party, vexed that their writ doesn’t already run from coast to coast, disgruntled that the Prime Minister of Great Britain and Northern Ireland now has to factor in the attitudes and political preferences of Tony Blair’s “parish councils” in Edinburgh, Belfast and Cardiff, affronted that Her Majesty’s ministers sometimes have to explain and justify themselves in court.

What unites all of these things is a fantasy of political freedom. Behind the rhetoric of parliamentary sovereignty, effective checks and balances are dismantled or discredited. “Do what thou wilt shall be the whole of the law” isn’t just Boris Johnson’s personal maxim. It reflects the political outlook a significant part of his political party seems to entertain about how the UK should be governed.

Raise this prospect, and people will scoff at you. This is crazy-talk, they say. Devolution is safe. This outlook strikes me as increasingly naïve, given the Tory dreamscape which is becoming clearer and clearer. To steal a line from the Canadian writer David Frum, if the Conservative and Unionist Party become convinced that they cannot win democratically, they will not abandon conservatism or unionism: they will reject devolution. After all, they never really bought into it in the first place.

Their accommodation with the new institutions it created in 1998 were transactional and instrumental. They didn’t have any realistic alternative. Grumblingly, they played along. As Ludovic Kennedy pointed out, for much of its history, Scotland’s place in the union has been like being in bed with an elephant – certainly for my political lifetime. You always rested uneasy. The risk of being thoughtlessly – or deliberately – squashed was ever-present. Alister Jack’s latest interventions should remind you these nights, the elephant is resting uneasy. It’s having bad dreams.

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