Supreme Court shows how the Union can work

Supreme Court shows how the Union can work

by Jonathan Stanley
article from Thursday 13, December, 2018

TODAY'S JUDGEMENT by the Supreme Courton the Scottish Government's Legal Continuity Bill is fascinating. It is essential reading for anyone interested in the dynamic between Holyrood and Westminster. It has restored my faith in the wisdom of the Supreme Court who have neither “eviscerated” nor endorsed the legal position of the Scottish Government.

It gives some of the more crisp and concise objective statements on devolution I have read and gives much attention to the background of devolution and the Sewel Convention especially.

In a narrow construction of the law, as matters to lawyers and judges and civil servants, the Scottish Government Bill is incompetent. The court confirms that Holyrood has no right to overrule Westminster. This we knew and did not expect would change. The exegesis of the Bill was to ensure continuity of law after we leave the EU and to prevent Westminster taking back powers from Holyrood that should otherwise go to it.

The principle of the Bill is sound but the key points the Scottish Government tried to make, to prevent Westminster acting without its consent, foundered on a sound constitutional basis. This should reassure us all. The Court has not taken a partisan approach and laid the way for the Scottish Government to amend, to the point of redundancy, the bill that will be returned. 

The Court presses the point that there must be consistency in interpreting the Holyrood Westminster relationship and that says much about how highly Scotland is valued by the Union’s court. It takes devolution very seriously. 

This was never about stopping Brexit, or simply causing mischief. The Scottish Government was right to feel aggrieved (granted it never takes much) that the commitment to consult and gain consent from Holyrood was not honoured in spirit even if in law. Trust is taken very seriously too and the UK government lost it for reasons that are still hard to justify (ignorance and stupidity methinks, Ed.).

At the start of this arm-twisting saga the Sewel Convention was dressed in ermine robes, it has now been left wearing a bra and a bomber jacket.

The grudge machine has been fed. To gain victory over the Scottish Government by the principle of might being right is not sound politics and does little to assure us Westminster treats devolution as seriously as the Court. 

Had the Scotland Office taken more time and patience all the contested powers could have been handed to Holyrood, who would then have had to cooperate with Westminster to ensure continuity. In the end there would not have been a material difference.

Scotland has been legislating in mind of the UK for a while now. Hard as it might be to imagine, the UK has four discrete Jams and Similar Products Regulations in place. One for the UK, one for Wales, one for Scotland, one for Northern Ireland. The Scottish Parliament viewed legislation passed by Westminster, of EU origin, and passed its regulations accordingly.

No dog's breakfast, pickle, no fudge, just jam. No divergence took place because it had no value to anyone. A Westminster that TRUSTS devolution would understand this. The new attitude is the great loss.

As the mother Parliament Westminster should take back control of the narrative. Instead of humbug we need contrition and humility. I was right to call for Mundell (pictured) to go, he is quite useless. Given that we are stuck with him for now it is for him and his juniors to be seen to take the points raised in the Court judgement seriously.

There is a small window whereby the Scotland Office can work with Holyrood to assuage concerns and show it is listening. Mechanisms for power transfer still need to have an orderly transition. This is where the spirit of unionism comes into its own.

Is there anyone in Westminster ready for it?

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