The stramash between Theresa May’s government in London and Nicola Sturgeon’s ministry in Edinburgh over the need for the devolved parliaments to consent to the UK government’s EU withdrawal bill is, as the wags say, the world’s most boring constitutional crisis. So much so, indeed, that many voters in Scotland – to say nothing of elsewhere in the realm – remain splendidly indifferent to it.
The Scottish parliament yesterday refused to give its consent to the withdrawal bill. Legally, this changes little. Politically, it has the potential to change many things. Nicola Sturgeon, with the support of Labour, the Lib Dems and the Greens, says she is “protecting devolution” and standing up for the Scottish parliament.
No self-respecting Scottish government, of any party, could allow Westminster to unilaterally legislate in areas that would have been devolved had the UK not been a member of the EU and had the devolution acts been drafted in the same way as they were drafted a generation ago. There is plenty of conditionality there, of course, but there you have it. Donald Dewar’s devolution bill reserved powers to Westminster; everything not explicitly reserved was devolved. That included matters such as agriculture and fishing.
Even so, all this masks the fact there is substantial agreement between the respective governments. They agree that something approaching 80 per cent of the responsibilities being repatriated from Brussels to the UK should in turn be passed on to the devolved administrations. And they all agree that common UK-wide “frameworks” need to be in place and that a UK-wide approach to fishing, agriculture, state aid and the rest of the 24 remaining powers are at the heart of this dispute.
Those frameworks would remain in place for five years after the great Brexit liberation day is celebrated. And there is some good sense in this. If nothing else, a period of stability will be welcome. Moreover, on issues such as food-labelling – this is sexy stuff, you understand – a pan-UK approach is clearly preferable. Equally, it seems intuitively reasonable that, for example, hill-farmers on one side of the Cheviots should not have an unfair advantage over hill-farmers on the other.
The argument, then, is not over the existence of these frameworks and common approach themselves but, rather, what happens if and when the UK government wishes to change policy in these areas. Should it have a unilateral right to do so, or should it only act with the agreement – the consent – of the devolved parliaments?
Agriculture, for instance, is a devolved issue but hitherto that has merely been an administrative matter not a policy-setting one. Policy was set in Brussels, not Edinburgh or Cardiff (or indeed, London). But it takes little effort to imagine circumstances in which the UK government will wish to change agricultural policy – that is, the management of subsidies – in ways that will antagonise the administrations in Cardiff, Edinburgh and (if there ever is one) Belfast. In each of those territories, agriculture is a more important matter than it is for the UK as a whole.
So fights loom. The UK government complains, with some reason, that it cannot give the devolved administrations a veto over these issues. At the same time, however, imposing policy on Scotland or Wales in areas that are notionally devolved is not an attractive look. It looks rather like the “power grab” the SNP complains it is. That perception is reinforced by the framing of legislation which suggests the UK government may construe the absence of consent as consent.
A constitutional crisis? Well, not quite even if it plainly has the potential to become one. Westminster has still not wholly come to terms with the manner in which the UK has changed. Devolution has changed the way many voters in Scotland and, to some extent, Wales, perceive the UK. Holyrood is a parliament too and that means its prerogatives need to be respected.
That you can do something – in this instance, ignoring the wishes of the Scottish parliament – does not necessarily mean it is wise to do that something.
The safest course now is to establish the common UK frameworks in question and then do as little as possible with them. Westminster is not accustomed to honouring such self-denying ordinances but it would be wise for it to do so in these instances. It may not, as a legal matter, require the agreement of the Scottish and Welsh governments when it comes to setting new fisheries and agriculture policy but it would be sensible, nonetheless, for the UK government to seek that agreement. In the absence of that concurrence, the status quo might have to endure, however imperfect it may be. That is politics and politics is, in the end, the art of the deal.
But it is also the art of perception and for all that I have not yet met a member of the public genuinely concerned by this issue it takes little imagination to see how, some time in the future, this controversy could cause difficulty for the UK. The SNP may be expert grievance-miners but that does not necessarily mean all their grievances are artificial.
Nicola Sturgeon has not yet won the battle to persuade middle Scotland that this is an intolerable state of affairs. That does not mean she cannot prevail in the future. Technically, of course, Westminster has always retained the right to abolish the devolved parliaments; politically things are rather different.
Scottish Tories insist a deal was there to be done and that there is no good reason for thinking that if the Welsh government’s concerns could be satisfied the Scottish government’s could not. Indeed – though the SNP deny this – the Tories suggest that the Scottish government was on the point of agreeing until a last-minute change of heart.
Maybe. Disagreement between Edinburgh and London is hardly a disaster for the SNP. Sturgeon has a constituency to play to, after all. Hence the battle being waged to depict either the Scottish government or the Scottish Conservatives as the “isolated” parties here. As so often, the truth is a bit of both. Each is isolated, depending on whether the terms you consider are UK-wide or Scotland-specific.
The UK government needs a Wille Whitelaw, however; someone to scurry around the country stirring up apathy. Otherwise there is a risk a theoretical constitutional crisis could one day become a fresh and full-blown political crisis. The UK may not need to consult and secure the consent of the devolved parliaments in these areas of policy; it would still be prudent for it to do so.