“Do what thou wilt shall be the whole of the law”

Sunday National, 4th July 2021.

“Mr Tickle, governments do not go into court against each other, do they?” That was Tavish Scott, back in September 2015, scrutinising me unsympathetically across the committee room table in Holyrood. I’d suggested that ambiguities in the Scotland Bill – which was then slowly progressing through Westminster – had the potential to generate litigation. People, I argued, would fall out over what powers Holyrood did and did not have. And sometimes when people fall out, they go to law.

Such a challenge might be brought by an ordinary punter with an axe to grind and money to spend. Or it might play out between governments, as Westminster jostled with Edinburgh, Cardiff and Belfast – and the devolved administrations jostled back – over the legal limits of their powers.  

Tavish Scott seemed black affronted by this suggestion. Eyeballing me with unconcealed incredulity, the Lib Dem MSP insisted that “back in the real world, governments do not go to courts.” “The intergovernmental machinery, which the committee has taken a lot of evidence on, is designed to make sure that that does not happen.”

There was something of a subtext to these rather testy exchanges. His implication was, I think, that I was some kind of perfidious cybernat on manoeuvres, manufacturing divisions, and talking up opportunities for legal discord where he heard only sweet harmony. I suppose you can understand his suspicions.

But it is difficult to overstate how desperately naïve his hostile line of questions now sound, half a decade on, as we contemplate the smouldering wreck of the UK government’s relationship with every other administration in these islands, and court cases pitting governments against one another continue to proliferate, as political rumpuses turn into legal rows.  It turns out Chicken Little was right.

At the time, I wish I’d given Tavish Scott a better answer – the better answer being that the UK government had already subjected the Welsh administration to a succession of court cases, using its attorney general to try to clip the Senedd’s legislative wings. In 2012, and in 2014, Welsh Bills on agricultural wages and local government reform found themselves the subject of legal challenges. So yes, governments do find themselves arrayed in courts against one another. And thanks to Brexit – and the aggressive unilateralism of this UK government – this latent tendency towards legal conflict in UK politics has now burst into full bloom.

Just contemplate the last week. On Monday and Tuesday, the UK government pressed its objections to elements of Holyrood’s Children’s Rights Bill in the Supreme Court. On Wednesday, a judge in Belfast knocked back a legal challenge brought by an array of unionist politicians – including the former DUP First Minister – arguing the Northern Ireland Protocol is incompatible with the 1800 Act of Union. Four days ago, the Court of Appeal decided there are “important issues of principle” at play in the Welsh Government’s challenge to the UK Internal Market Act, “going to the constitutional relationship between the Senedd and the Parliament of the UK” which merit a hearing.

In 2016, Westminster passed legislation saying it wouldn’t “normally” legislate on devolved matters without consent, and went to law in 2018 to argue this was a meaningless formulation with no legal effect. Holyrood tried to use its devolved powers to try to shape the impact of Brexit on farmers and producers and growers – and the UK government subjected the plans to a pocket veto, tying the Holyrood legislation up in the Supreme Court while its MPs were dragooned through the lobbies in quick-time to ensure the UK legislation was imposed on Scotland while the justices of the Supreme Court were still pondering the Holyrood proposals clause by clause. The UK Internal Market Act was smacked down as a legislative fait accompli, dissenting majorities in Edinburgh and Cardiff barely noted, and promptly ignored.

The “intergovernmental machinery” Tavish Scott put such a touching faith in in 2015 shows every sign of having collapsed entirely. This week, the Labour First Minister of Wales reflected on his experience dealing with Whitehall as an increasingly beleaguered unionist who believes that a different kind of union is still possible.

Mark Drakeford’s political analysis won’t be news to anyone reading this paper, but repays quoting. “Too often,” he says, “we see the UK government act in an aggressively unilateral way, claiming to act on behalf of the whole UK, but without regard for the status of the nations and the democratic mandates of their governments.” Against that backdrop, he argues, “it has become harder and harder to make the case for the Union.” Beyond “slogans, buildings and flag flying, the current UK Government has contributed little to thinking about an energised and viable future for the Union.”

The “aggressive unilateralism” Drakeford identifies seems like the UK government’s only answer to this complexity. And law and courts are going to assume an important role in enforcing that unilateralism. It is the law which gives the UK government extensive power to put devolved legislation under the noses of the court for comment. The law even gives the Secretary of State power to block devolved legislation unilaterally if they believe it is incompatible with deals struck with foreign governments. It is, I’d suggest, only a matter of time till we see this power being used to enforce one of the UK government’s trade deals which touch on devolved areas. Ciaran Martin’s vision of a union “that survives only by force of law” is evolving before our very eyes.

You don’t need to look far for ironies here. This is a UK government – and a Conservative Party –  which is increasingly allergic to any legal restrictions being imposed on the conduct of its ministers, or the policies they introduce, or the decisions they take. Judicial review, human rights, activist lawyers, appeals against Home Office decisions, tribunals ruling against the government – each of these has been in turn been threatened with abolition, suppression or reform by the current regime, accused of politicising their functions and overstepping their proper bounds.

Alternative power centres which have the potential to put UK ministers under pressure, or to paint them in a bad light, or to hold them responsible for their bad behaviour, or subject them to legal control, are undercut and underfunded, denounced and increasingly being dismantled bit by bit by this government.

Rules are bent. Reports are repressed. Independent investigators on the ministerial code are appointed, and forced to resign when their conclusions prove politically inconvenient. The Electoral Commission are already a skeleton crew with vanishingly few resources to do the job of policing the UK’s electoral system. Every indicator suggests that keeping track of the sluice-gates of dark money sloshing around our electoral system – and sanctioning infractions in any meaningful and consistent way – is dramatically beyond their capacity.

But even the occasional growl and scratch from this paper tiger has been enough to send a segment of increasingly vocal Tory parliamentarians to work, complaining of a “loss of confidence” in the Commission which seems entirely attributable to the Commission engaging in too much enforcement as far as they are concerned, or rather, the wrong kind of enforcement.

It seems only a matter of time until we’re told that international corporations should be able to donate vast sums of money to the ruling party, as part of “Global Britain’s” open, bold and buccaneering engagement with the wider world. Expect concerns about cronyism, sweetheart contracts and corporate revolving doors to be dismissed as petty and unentrepreneurial.

I don’t think Boris Johnson has a governing philosophy. Johnsonism isn’t a political agenda – but a cast of mind, an attitude, a corrupting sensibility. Rules are for suckers. Restrictions are for other people. Power is what you can get away with it.

Tory politicians who rail against “political controversies” finding their way into the Supreme Court are now quite content to send Scottish and Welsh Bills there in the hopes they’re struck down. They rarely seem to perceive the tensions between these two ideas – but step back, and you’ll see they’re entirely consistent with Captain Impunity’s basic political and personal instincts. “Do what thou wilt shall be the whole of the law” for me. And for you? Well, the judge will see you now.

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