The last few years have seen a sustained attack on the powers of the Scottish Parliament from Westminster. In a paper called “Devolution Since the Brexit Referendum”, Constitution Secretary Angus Robertson looks in detail at what has taken place. Here are three key takeaways from the paper.
#1 Breaking the rules – The Sewel Convention
When the Scottish Parliament reopened in 1999, there was a rule put in place that Westminster would not normally make laws that affect Scotland in an area where power was devolved without the consent of the Scottish Parliament. This was called the “Sewel Convention” and it was contained in a Memorandum of Understanding that both governments signed up to. But there was no legal backing to this rule – it was a gentleman’s agreement. Before Brexit, this agreement was upheld. Since then, the UK Parliament has broken the convention (or is in the process of doing so) 13 times.
- The Nationality and Borders Act, making it a criminal offence to arrive as a refugee;
- A trade deal with Australia that is bad for Scottish agriculture;
- Laws about genetically modified food;
- Removal of EU protections for workers’ rights;
- A forthcoming energy bill that overrides Holyrood in several areas.
The UK doesn’t have a written constitution – it is governed on the “good chaps” theory which says that those in power will obey the established norms and don’t need a constitution. We have seen the failure of that idea on many fronts recently. The Scottish Government yesterday raised concerns about this very issue in its independence policy paper on an independent Scotland’s constitution.
#2 Brexit – The Internal Markets Act
The effects of a hard Brexit on Scotland have been harsh. More than £3 billion a year in lost trade for Scottish businesses; imports are more expensive; and the seasonal workforce so important to agriculture and tourism has been impacted. Brexit has also enabled another attack on Holyrood. As Westminster brought back all powers to itself, it made a hammer out of them to use against the devolved parliament.
Westminster passed the UK Internal Market Act 2020 which makes fundamental changes to the powers of the Scottish Parliament. Rules set elsewhere in the UK MUST apply in Scotland to imports from that part of the UK, whatever the equivalent rules in Scotland say.
That is a contrast to the flexibility of the European Single Market, which recognises both local factors and a balance of different policy objectives – such as health – with economic activity. instead the IMA imposes a straitjacket on Scotland.
The result is that the Scottish Parliament is effectively prevented from setting the standards it wants for Scotland within areas of devolved responsibility.
For example, Westminster has recently passed legislation to allow “precision breeding” (essentially gene editing) of plants and animals, including for human consumption, in England. Under this legislation and the IMA, these products will have to be allowed into the Scottish market, even if they would otherwise be illegal under Scottish rules.
It means plans like putting a deposit charge on glass bottles or banning wet wipes are illegal – unless Westminster chooses to magnanimously grant Scotland specific exemption from the law which it passed without Scotland’s consent.
#3 Distributing Public Funds
The convention previously held that UK public funds due to Scotland would be spent by the Scottish Parliament in line with the policies and priorities of the devolved government. However, the UK Government has changed that – now unelected ministers like Malcolm Offord, a member of the House of Lords – get to decide how money should be spent.
The new Levelling Up Fund is a case in point – the Scottish Government expected to receive Scotland’s share of the £4 billion pot that was announced. But in the 2021 Spring Budget, the UK Government said – without consultation with Holyrood – that the Levelling Up Fund would be UK-wide and that they would distribute funds directly, bypassing the Scottish Parliament.
They have also short-changed Scotland in the process. Approximately £97 million is still owed to Scotland, with just under half of all local authorities yet to receive any support.
During the period of EU membership, Scotland punched above its weight in funds like Horizon, the biggest scientific investment fund in the world. The EU also recognised the problems of ‘peripherality’ – rural areas far from markets and so the Highlands and Islands got extra funding. The Common Agricultural Policy supported farmers to produce affordable food – but the UK Government will not replicate the same level of investment.
The UK Government has failed to keep its promise to replace the overall level of funding that was previously available under European Union funding schemes. The Scottish Government has calculated that £549 million over a three-year period was required to replace EU Funding. The UK Government’s allocation of £212 million to Scotland over three years is less than half of that.
EU funding was also distributed through the Scottish Government, whereas the UK Government now provides funding directly and solely to local authorities. That means the money will be spent however and wherever Malcolm Offord and Alister Jack decide – with no role for Scotland’s democratically elected Parliament.
In the last few years, Holyrood has seen its powers rolled back in every area. Westminster has used Brexit as the basis for a major power grab. Devolution cannot be protected – because in the UK’s system, all of the power and all of the sovereignty rests with Westminster. It only lends powers to the Scottish Parliament and it can remove them at will.