Scotland is not facing a major constitutional crisis, unless Nicola Sturgeon creates one, writes Ruth Davidson.
The snow is thawing. Scottish politics isn’t. Today, MSPs will debate the SNP’s Brexit ‘Continuity Bill’ – emergency legislation, ruled ‘ultra vires’ by the Presiding Officer, which the Scottish Government hopes to ram through with minimal debate or scrutiny from MSPs. Scottish Conservatives, alone, had opposed attempts to restrict parliamentary discussion to just three days’ chamber debate. However, during these three days we will urge the SNP to focus on negotiations with the UK Government to reach agreement.
For the vast majority of working adults – for whom the impenetrable details of Scottish constitutional politics is not their top priority – this latest row may have passed them over. I’ll set out the issue at stake.
When we leave the European Union next year, substantial new powers over our way of life will return to the United Kingdom. After 40 years of membership, laws on agriculture, fisheries, the environment and justice have slowly built up in Brussels. Overnight, they will come back to these shores. But they will return to a very different country to the one that joined the EEA. Devolution now means we are a multi-polar state with responsibilities shared across our different regions and nations. So the question is: when these powers come back to the UK, where should they lie?
Despite the talk of a constitutional crisis, there is general agreement about how to answer that question. Two principles should be met. Firstly, we should respect the devolution settlements erected over the last 20 years. And secondly, we should do nothing to damage the integrated UK internal market on which our prosperity hangs.
Since the UK Government first started discussing these matters with the Scottish Government in Edinburgh, there has been substantial agreement on these core principles. Ministers in London have worked out that there are, in total, more than 100 returning powers which touch on areas of devolved competence, and have shared these details with Ministers in Edinburgh. They want to ensure the vast majority are devolved. For their part, Ministers in Edinburgh have agreed that, if we are to manage these powers effectively in a way that supports the economy, it would be better to agree pan-UK frameworks with London in some areas to make life easier for people. To give a real-world example, food labelling could be devolved to Edinburgh, with new regulations drawn up for Scottish-based producers. But given those producers will want to sell into England, Wales and Northern Ireland it makes no sense. So better to agree UK-wide standards so we all benefit.
Sounds simple? As is almost always the case in Scottish politics, the problem has been over the process of how this is done. Initially, the UK Government proposed that – when all these powers come back to the UK next year – it would create a holding pattern at Westminster before they were devolved. Parties at Holyrood, including my own, did not think this was the right path. So two weeks ago, the UK Government proposed a new plan. Given that, in the majority of cases, it doesn’t matter if there are different new rules in Scotland than in the rest of the UK, the UK Government agreed they should come back to Holyrood immediately. That’s now on the table.
The sticking point is now over the remaining minority of powers which will, in time, be covered by a UK framework. And the disagreement isn’t even about how to set up those frameworks or where they are needed. It’s about how to manage the period immediately after we leave the EU when it’s likely those frameworks won’t yet have been settled.
Still there? Essentially, this entire row now boils down to a disagreement about how this period is managed. Yet as a result of this, the SNP last week announced it would now legislate to pass EU law into Scottish law, against the advice of the Scottish Parliament’s own lawyers and the Presiding Officer’s ruling, with no time for MSPs to scrutinise as they would normally.
It is another massive political power play from this SNP Government. Let us remember where we start from. As things stand, the Scottish Government has no influence over these EU powers and never has, because they are held in Brussels. The SNP has never previously complained about this and Nicola Sturgeon’s position, apparently, is that they should stay there. But because the UK Government now proposes to be able to keep consistency for a temporary period before a joint UK-wide framework is agreed, all hell kicks off. Let’s also recall that this only applies to a minority of the powers that are coming back to from Brussels. In the large majority of cases, powers which currently lie at EU level and which have an impact on the devolved Scottish Parliament are now coming straight back to Holyrood next year. The SNP could have claimed at least partial credit for that; instead, they’re picking a constitutional fight when there is still room for a reasonable deal.
There have been justifiable grievances in this affair over recent months; indeed, my own constitutional spokesman Adam Tomkins has aired them. But we now need to weed out those fair points from what increasingly appears to be constitutional gamesmanship. And the only conclusion I can reach from the last week is that the SNP now actively wants a row. It will cast itself as the dogged defender of devolution. It will seek to portray Westminster as some sort of post-colonial administrator, determined to grab power. But it’s the SNP, not Westminster, who are failing to respect the devolution settlement in fast-tracking unconstitutional legislation through Holyrood with minimum scrutiny.
Even now, despite the SNP’s claims, this is not a major constitutional crisis. Or, at least, it need not become one. There is a deal to be done which ensures the smooth transfer of powers back to the UK and Scotland after Brexit. I’d hope both sides can keep working in a spirit of compromise and good faith to reach agreement.
The SNP can either emerge with credit from this process as a grown-up government which will have far more powers over the running of Scotland. Or it can revert to type and confirm the growing suspicion that its only interest in Brexit is to threaten constitutional brinkmanship rather than work towards a deal. That is the choice Nicola Sturgeon and her ministers face – and I, for one, hope they choose the right path.