Since the Brexit vote, Westminster has been determined to take back control – of Scotland. It wants to go back to an old version of the power relationship that predates the era of both countries joining the EU. It is tearing up the agreed legal framework that was established on the basis of the 1997 referendum where devolution was supported by 75% of voters.
Without consultation or consent, the UK Government is making highly political and ideological changes. Instead of standing by the convention that it should not interfere in devolved areas, the Westminster government sees itself as the owner of Scotland’s sovereignty – and it regards the Scottish Parliament as having none. Therefore it can do whatever it pleases to Scotland.
Ten ways the UK Government is undermining devolution
#1 A hard Brexit was forced on Scotland without consent
The referendum on EU membership delivered an incredibly strong Remain result (62%) in Scotland. The four governments in the UK initially agreed a process that committed them to working together in EU negotiations. This could have provided an opportunity for the views of the Scottish electorate to be taken into account and for consideration of a compromise proposal, something like the Northern Ireland protocol. In practice, however, the form of Brexit – with the UK leaving the European Single Market and Customs Union as well as the European Union – reflected solely the views of a hardline group of English MPs, the ERG who lead the UK Government.
#2 The UK Government’s “Brexit Freedoms Bill” – means the freedom of Westminster to do whatever it wants to Scotland
Many of the laws we take for granted, from workers’ rights to consumer protection are written into UK law as part of EU laws. The Brexit Freedoms Bill will tear those up – it will effectively give the UK Government so-called Henry the Eighth powers to amend these at will without the usual Parliamentary process for making new laws. It means there could be a race to the bottom with a bonfire, not of red tape, but of citizens’ rights.
#3 The Internal Markets Act was forced on Scotland
The United Kingdom Internal Market Act 2020 made it illegal for any divergence between the different nations of the UK when it comes to trade. That means that even a small change by the Scottish Government – like putting a 10p deposit on glass bottles is automatically deemed illegal. It would require a specific exemption in the UK act for Holyrood to do that. The Act had to be amended last month to allow Scotland to ban cotton buds, which can end up in the ocean. That is a big change from the previous devolution settlement. Holyrood did not consent to this Act but it was pushed through anyway.
#4 The UK’s increasingly-lax environmental standards and rights will be forced on Scotland
One example is the UK government is already planning to water down the regulatory requirements on key chemicals, and experts say the UK’s rules are now trailing the EU. One example is glyphosate – Roundup – which research suggests disrupts the immune systems of honeybees making them more vulnerable to colony collapse. It is likely to be banned in the EU but remain legal in the UK. Because of the Internal Markets Act, it would require a specific legal exemption by Westminster for Scotland to effectively ban toxic chemicals from being sold north of the border.
#5 The UN Convention on the Rights of the Child was partly struck down
Another example is the incorporation of the UN Rights of the Child into Scottish law. This was passed unanimously by Holyrood. England doesn’t recognise these rights – in part because they would apply to child refugees. As a result, it took the Scottish Government to court and struck out several provisions of this internationally agreed convention. In the course of this case, the UK Supreme Court ruled that all of the sovereignty of UK democracy rests with Westminster – the Scottish Parliament has effectively no protection in the courts – despite the massive majority of Scottish people who voted ‘Yes’ to devolution.
#6 “Leveling up” means avoiding the scrutiny of Scotland’s elected representatives
The UK Government has defined a series of “leveling up missions” covering devolved matters – such as education, health and justice – without the agreement of the devolved governments and has indicated it does not intend to seek consent, or even consult them over its plans.
The UK Government also took on new powers to spend money in devolved areas that had been removed from them in 1999. Scotland has received just 3.5% of all Leveling Up funding, despite having 8.2% of the population”. The leveling up funding being distributed by the UK Government fall far short of the funding streams Scotland received from the EU, for infrastructure, remote area support, investment in science research and more.
This is underlined by a “UK Infrastructure Bank”, being set up to bypass the devolution settlement
The UK Government’s legislative programme announced in May 2022 includes Bills for a UK Infrastructure Bank with powers to spend directly in devolved areas, without even checking these decisions respect the priorities of the Scottish Parliament in areas for which it is responsible.
#7 If the UK Government secures a trade deal with the US that may impact the NHS in Scotland
Ongoing trade talks between the UK and the US include access to health data. There have also been fears that US pharmaceutical companies are seeking access to the NHS in any deal. That could impact prices for new and old drugs. Holyrood would not have the power to say no to such deals and the gradual privatisation of the NHS will impact negatively on Scotland’s health budget.
The UK Government has made it clear it will not hesitate to override devolution within the context of international trade deals. A clause protecting the NHS from being on the table in trade negotiations was removed from the Trade Act.
#8 Lack of protection for Scotland’s iconic food and drink brands in the UK government’s negotiated trade deals.
The UK Government does not consult Scotland over the impact of trade deals on Scotland, even though Scotland is responsible for a third of the UK’s food and drink exports. The EU recognises 15 protected geographic indicators for food and drink from Scotland – they are special food categories that belong to all the producers in a specific area – like “Shetland lamb” or “Scottish salmon”. Australia does not have these for food, though it has some for wine. Other legal ways to protect iconic brands, like Scotch whisky are expensive and complicated. The document produced by the UK Government on the Australia deal makes clear there is no current protection for Scotland’s food PGIs. This template will be rolled over to other countries such as the USA and represents a problem for Scotland’s high-quality food producers, who could be undercut by people piggybacking on the brand and any promotion.
#9 The Elections Act 2022 demanding photo id to vote is being forced on Scotland
The Scottish Parliament refused to consent to the Elections Act but nevertheless, it will cover the general election rules. The UK government’s own research suggests that 9% of voters do not have eligible identification. It disproportionately affects those on low incomes. A report said the Act risks damaging trust in the UK’s electoral system, instead of protecting it. Legislation to create free voter id cards has been delayed.
The Wikipedia entry on the Act reads:
“The act was criticised for permitting as acceptable voter identification “an Older Person’s Bus Pass, an Oyster 60+ Card, a Freedom Pass”, while not allowing 18+ student Oyster cards, national railcards, or student ID cards. An amendment in the House of Lords to list these as accepted forms of voter identification was rejected by the Conservative government.”
#10 The Vow to maintain the Barnett Formula is being broken
In 2014, the “Vow” that contributed to winning the referendum for the Union included an express commitment to maintaining the Barnett formula. Over time, Barnett gradually reduces Scotland’s budget share anyway. It is based on a per head population count and does not recognise the huge assets Scotland shares with the UK in terms of food and energy production, or the different costs of a more dispersed population in a large area, or the issue of peripherality for the Highlands and Islands, as the EU does. But even that promise is being broken – the Scottish Parliament’s budget is being cut. Money such as the Leveling Up money is being unfairly distributed – Scotland’s share of that should be handed over to Holyrood. The Scottish Fiscal Commission confirmed in December that: “Overall the Scottish Budget in 2022-23 is 2.6 percent lower than in 2021-22. After accounting for inflation the reduction is 5.2 percent.” That number will be significantly higher now.
Far from the promises of the 2014 referendum campaign of ‘lead us don’t leave us’, the UK Government has embarked on a a very different course. Rather than consulting with Scotland’s elected representatives – be they in Westminster or Holyrood, the UK Government treats them with growing contempt. It does not recognise any sovereignty of the Scottish Parliament. Despite the fact it has a handful of MPs and relies on proportional representation to get less than a quarter of the seats at Holyrood, the UK Government intends to bend Scotland to its will.