Wednesday was not one of those days when it was difficult to tell the difference between a ray of sunshine and a Scotsman with a grievance. The SNP launched a choreographed flounce from the House of Commons following a spat between their leader Ian Blackford and the Speaker over the treatment of Scotland’s position in the Brexit debates.
The government was quick to accuse the SNP of pulling a stunt and of manufacturing discontent. It’s certainly true that the SNP haven’t exactly gone out of their way to seek concord with Westminster in the past. When copies of the SNP’s staging notes were discovered, the Conservatives claimed that the stunt had backfired.
The following day, however, the SNP announced that they had signed up 5,085 new members in the previous 24 hours. The former editor of the Daily Record, Murray Foote, who had been instrumental in 2014 in putting together the unionist Vow in the last week of the referendum campaign, announced that he was now a supporter of independence. Stunt or no stunt, the SNP have struck a chord with some.
What’s the deal? Well, the Speaker had allotted just 15 minutes in the Brexit debates on Tuesday to discuss post-Brexit devolution concerns. Given that the Scottish Parliament had not accepted the Westminster government’s approach to devolved matters in Brexit, the SNP felt that this was wholly inadequate. Ian Blackford had asked the Speaker to extend the debate, and the Speaker had refused: hence the walkout.
We now enter constitutional niceties that are of no interest at all to the English. (This uninterest, incidentally, is an important point that I will come back to.) Devolution, as the word suggests, is a devolving of power from Westminster to Holyrood. It means that in theory at least Westminster can overrule Holyrood when push comes to a shove. This makes Holyrood’s power contingent on Westminster’s goodwill.
At the time, it was recognised by the government that devolution needed more entrenchment. So a constitutional convention was created at the instigation of Lord Sewel, Parliamentary Under-Secretary of State for Scotland at the time of the passage of the Scotland Act 1998, under which the UK government would not normally seek to legislate on devolved matters except with the agreement of the devolved legislature.
This convention, which applies to the devolved assemblies in Wales and Northern Ireland as well, was reaffirmed by the UK government as recently as 2013. Unusually for a constitutional convention, it is referred to in legislation. Section 28(8) of the Scotland Act 1998 provides:
“But it is generally recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
In practice, the devolved assemblies have rarely refused consent. So far they have done so just ten times in aggregate. The Scottish Parliament has done so only twice (the Welsh have been much more awkward in practice). The European Union (Withdrawal) Bill is the second time on which it has done so. So it can hardly be said in reality that the SNP government in reality has been fomenting discontent on a routine basis.
The Scots took a very different view of the EU referendum from the English. The Scottish government has a genuine concern that Westminster might seek to use the repatriation of powers from Brussels as the opportunity for a power grab at Holyrood’s expense.
Theresa May’s government has been desultory in addressing these concerns. No doubt its attention span for Scottish matters has been sharply diminished, given its need to negotiate with the EU, the hardline Brexiters, the rebellious Remainers and the DUP and, for that matter, to reach an agreed position itself. Nevertheless, the strong impression has been given of a government that is intending to steamroller its way past the rebellious Scots by the use of its residual power and forcing a settlement on its terms.
It is against this background that the battle between Holyrood and the UK government came to be considered this week in Parliament. For English MPs, this is a complete sideshow. For the Scots, however, it goes to the heart of devolution. For Parliament to allocate just 15 minutes to discuss the impact of Brexit on the constitutional framework of devolution was an insult to the Scots.
At such points it is usual to say that the optics of such a dismissive approach to devolution are appalling. But that wouldn’t be correct on this occasion: it is the dismissive approach itself that is appalling.
The fact that devolution throws up some very difficult problems in relation to Brexit does not mean that devolution should be treated as a disposable luxury: those difficult problems should have been engaged with and considered properly by the House of Commons.
It is this fundamental unseriousness of the English towards devolution which is going to doom the current constitutional settlement. When the architect of the Vow gives up on unionism, it is likely that many others will follow.
The economics of Scottish independence continue to look daunting. But where there’s a will there’s a way. Scots will not indefinitely accept a grace-and-favour devolution. This week may well have been the week when Scottish independence became an inevitability.