CommonSpace columnist Gary Elliot says Yes campaigners need to get more demanding when it comes to the Tories’ lack of clarity on Scotland
I’D like to take the opportunity to take more of a look at the theme that’s been developed over the past few days by various people including Iain Macwhirter, Craig Murray, Eric Joyce, Lesley Riddoch and Michael Fry. It’s about the interpretation of Theresa May’s speech to the Tory Party conference last weekend.
As has been expressed, how else can you take it but that Theresa May and the Tories want to restrict and constrain the powers of the Scottish Parliament and that she intends to use Brexit to do this?
This view, however, has received somewhat of a backlash from both unionist politicians and commentators, the suggestion being that this interpretation is an overreaction.
Read more – May fails to guarantee Scotland new powers promised by Leave campaign in keynote speech
In my opinion, though, you have to take a look at some of the things she actually said and some of the potential repercussions of what she outlined in her speech.
“The UK devolution settlements were designed in 1998 without any thought of a potential Brexit,” she said.
Quite. In fact, compliance with EU Law is specifically written into the Scotland Act. It’s Section section 29(2)(d) of the Scotland Act 1998 and it provides that acts of the Scottish Parliament that are incompatible with EU law are “not law”.
In response to Brexit, that’s going to have to change. Who’ll decide the manner in which that change takes place? The Tories at Westminster.
To me, examining the potential outcomes of this scenario is merely a logical and prudent step. An examination of the possible outcomes of even the smallest change is a step that anybody with any experience of managing change scenarios would undertake. Sometimes small changes can make huge differences.
Read more – 5 things you may have missed from the Scottish Tory conference
Let’s imagine that the letters ‘EU’ were replaced with ‘UK’. That simple change potentially gives Westminster a sweeping scope of new power that it hasn’t had to date under devolution and could potentially change the entire framework and relationship between Westminster and the devolved institutions in the UK.
And the Tories wouldn’t have to re-reserve a single power from the Scotland Act to do it. The fundamental difference between the EU and the UK here, of course, is that the EU has historically acted on the basis of subsidiarity and doesn’t particularly enact domestic Law.
Westminster, however, enacts domestic law on behalf of England and UK law in respect of reserved matters. If the Tories at Westminster wanted to constrain the Scottish Parliament within the narrower confines of UK law, is it really inconceivable that they wouldn’t?
I’m sure that those of a unionist persuasion may be thinking, “Ah, but Sewel … A legislative consent motion would be required”. Except we now know thanks to the Supreme Court judgement on Brexit that Sewel is merely a convention and can be disregarded by Westminster whenever it sees fit.
Would the Tories really consider interfering in devolved competencies in this way? Again, let’s have a look at what Theresa May actually said.
Would the Tories really be as bold as to totally restructure the devolution settlement in this manner? Let’s consider the evidence.
“As prime minister of the United Kingdom, I am just as concerned that young people in Dundee get a good start in life and receive the education they need to reach their full potential as I am about young people in Doncaster and Dartford.
“We need to build a new ‘collective responsibility’ across the United Kingdom, which unites all layers of government.
“In policy areas where responsibilities are devolved, we will look for ways to collaborate and work together with the devolved administrations to improve the outcomes for everyone.”
We’ve seen what the Tories idea of “collaborate and work together means”. It means rejecting all of the amendments put forward by Scottish MPs in the Scotland Act and it means totally disregarding the Scottish Government’s proposals on a differentiated Brexit deal for Scotland.
Why would Theresa May even mention a devolved responsibility – education – if the Tories weren’t considering some means by which they could interfere in that delivery? Or as Theresa May outlines it, “build a new ‘collective responsibility’ across the United Kingdom, which unites all layers of government.”
There has been plenty reaction over the past week from unionist commentators who have dismissed this interpretation of Theresa May’s speech and who have accused Yes campaigners of initiating their own ‘Project Fear’.
(If you think that this type of thinking isn’t happening at the moment, then this recent article in The Guardian may be illuminating.)
Would the Tories really be as bold as to totally restructure the devolution settlement in this manner? Let’s consider the evidence.
Do they have the motivation? Absolutely. One individual asking at a fringe event if the Tories couldn’t just repeal the Scotland Act may not exactly be party policy, but there can be no denying that there remains a well of antipathy within the Tory party towards devolution that has only been emboldened by Brexit.
Is there a mechanism? Yes. In my view, even a small, simple change to the Scotland Act creates huge potential repercussions for the entire devolution settlement without the need for any re-reservation of devolved competencies.
Is there a context in which they can deliver it? Yes. In fact, potentially there’s two. Firstly, if they go ahead as things stand this could be enacted as part of the post Brexit process. They’ve got a majority to do whatever they like, the Labour party is a shambles as an opposition and the Tories have got no problem whatsoever in totally ignoring Scotland’s MPs.
Fine. Everyone is entitled to their opinion. My issue, though, is that we’ve heard too little of their opinion. How do they interpret Theresa May’s speech? What do they think she really meant?
Secondly, if we go through another indyref and there’s another No vote, the Tories would be absolutely emboldened in doing whatever they liked as far as devolution is concerned.
As I mentioned at the start of this piece, there has been plenty reaction over the past week from unionist commentators who have dismissed this interpretation of Theresa May’s speech and who have accused Yes campaigners of initiating their own ‘Project Fear’.
Fine. Everyone is entitled to their opinion. My issue, though, is that we’ve heard too little of their opinion. How do they interpret Theresa May’s speech? What do they think she really meant? The same applies to the Labour party. We’ve heard precious little from them about how they interpret May’s speech.
In my view, that’s not good enough.
Conversely, though, I think it presents a major opportunity for pro indy campaigners to probe and question the intentions of the Tories over the entirety of the next campaign. What did May mean? Why specifically mention a devolved power? What does she mean by ‘collective responsibility’ across the United Kingdom, which unites all layers of government?
Because there are serious repercussions for the devolved settlement that we need clarity on, and the people of Scotland deserve a clear and transparent explanation of what is intended.
Because there are serious repercussions for the devolved settlement that we need clarity on, and the people of Scotland deserve a clear and transparent explanation of what is intended.
From the tactical perspective of the Yes campaign, this is important in order to get the Tories on the back foot, because – to paraphrase – “if Theresa May, Ruth Davidson and David Mundell are explaining, they’re losing”.
Picture courtesy of Number 10
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