- 24 Jun 2019
I want to start by saying a few words of tribute to Murray Sinclair, the Director of the Scottish Government’s Legal Directorate, who died in September of last year.
Murray was the Head of the Government Legal Service for Scotland for 10 years and had a distinguished career as a government lawyer stretching over nearly 30. He was also a member of the Council of the Law Society. He is much missed by colleagues in both the Law Society and the Scottish Government.
That the Scottish Government’s Solicitor should be a member of your Council demonstrates the strong - and properly independent - relationship which exists between the Scottish Government and the wider legal profession.
We rely heavily on the expertise of our solicitors and parliamentary counsels. Both the Scottish Government and the Scottish Parliament – in working to improve the quality of Scottish laws and Scottish law-making – benefit from the insights of partner organisations in Scotland and indeed around the world. The Law Society, as you might expect, is an especially important partner.
And we also welcome the efforts you make - not simply to clarify the law for politicians, but to give lawyers an insight into the world of politics. This conference is a valuable part of those wider efforts. I welcome the opportunity to speak here today.
I’m going to focus this morning on some of the key challenges the devolution settlement faces – in particular the tensions which are being highlighted by Brexit, and the way in which the UK Government has chosen to implement Brexit.
But I will start by looking back. And I’ll actually start by considering a 30th anniversary, rather than a 20th one. One of the key milestones in progress towards a Scottish Parliament was the signing of the Claim of Right for Scotland in 1989.
The signatories affirmed “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.
In doing so the signatories articulated the key distinction between the UK and Scottish conceptions of sovereignty. In the Westminster system, power has traditionally been exercised by the Crown in Parliament; here, it rests with the people of Scotland.
They also chose to mobilise public opinion behind a scheme for a Scottish Parliament. Canon Kenyon Wright, who became the Chair of Scotland’s Constitutional Convention, explained the reason for this.
Speaking of the Westminster parliament of the day, he said “Again and again and again...it has debated measures which affected quite fundamentally Scotland’s national institutions and the quality of life of our people. Again and again and again the elected representatives of the Scottish people have voted…against these damaging policies. Again and again and again parliament has imposed these on Scotland.”
That concern - that a “democratic deficit” had arisen in Scotland – was evident throughout the 1980s and 1990s. The poll tax became the totemic example - a policy imposed upon us in the teeth of massive public opposition.
But the real concern was wider – a UK government which held only a small number of parliamentary seats in Scotland, was fundamentally changing the direction of the country.
And one reason why the Scottish people endorsed devolution so overwhelmingly in 1997, was to stop anything similar ever happening again.
I’ll go on to argue, as you might expect, that UK policies in recent years – especially in relation to Brexit – have reanimated concerns about the democratic deficit.
But before I do, it’s worth highlighting that in many ways, devolution has been a very significant success – to an extent which would have surprised many sceptics at the time.
Important decisions about Scotland are now made by a parliament which has been elected by Scotland.
As a result, devolution has led to legislation which is better suited to Scotland’s needs, priorities and expectations.
The parliament has of course made mistakes – as I know an audience of lawyers will be well placed to let me know! But measures such as land reform; the ban on smoking in public places; the most ambitious climate change legislation in the world; equal marriage; minimum unit pricing for alcohol; and much, much more besides - all of these have helped, or are helping, to make Scotland a better and fairer country.
As a result, the Scottish parliament consistently scores highly on measures of public trust. According to the last Scottish Social Attitudes Survey, 61% of people in Scotland trust the Scottish parliament to act in Scotland’s best interests. For the UK parliament, the score is 20%.
Over 20 years – and this is thanks to MSPs across all parties - parliament has become the focus of Scottish public life. It’s the institution which people look to, to reflect their priorities, values and dreams.
And in turn, that public trust is a key reason why the powers of the parliament have been expanded over the last 20 years. We have built new institutions - for example a tax agency and a social security agency - that were never envisaged in 1999. We are now legislating to establish a Scottish National Investment Bank – something I believe could be transformational for our economy. By using our existing powers wisely, we have continually made the case for gaining new ones.
In addition, the Scottish Parliament has also gained trust, not simply because of what we do, but because of how we do it. Our way of working is very different from Westminster’s – and many of those differences are to our benefit.
Our procedures are more up to date. We have more family friendly working hours, though it doesn’t always feel like it. The use of electronic voting means that MSPs don’t waste vast amounts of time trooping through lobbies.
But perhaps most importantly of all, the Scottish Parliament was always envisaged as a place where parties would have to seek compromise and consensus. The use of proportional representation in elections is the key reason for that.
By contrast, the first past the post system used at Westminster is clearly unsuited to an age of multi-party politics. And the claim that used to be made for it was that it delivered strong and stable government. Nobody looking to Westminster at present would make that case.
The emphasis on consensus at Holyrood is even reflected in the design of the parliament. MSPs sit in a horseshoe. At Westminster, MPs face each other- in a chamber designed to keep them two swords’ lengths apart.
I don’t want to idealise the Scottish parliament too much. Anybody who watches First Minister’s Questions will know that consensus has limits.
Parties at Holyrood seek political advantage and argue strongly against each other – of course we do. But we also get a lot done. And we consistently work together. All of the legislative successes I’ve mentioned had the support of more than one party. Several were passed unanimously.
And it’s hard not to look at Westminster – and particularly the deadlock that exists over Brexit - without thinking that these cultural differences have real consequences. The UK Government’s consistent inability to resolve issues with parties other than the DUP has been striking. And that’s maybe partly because confrontation – not compromise – is inherent in the UK Parliament’s design, traditions and working methods.
In my view, those working methods – which contribute to and combine with the chaos of Brexit – are now putting elements of the devolution settlement at risk.
The concept of the UK 'internal market' that has emerged following Brexit threatens to constrain devolved powers.
Scottish Conservative MPs have urged the UK Government to bypass the Barnett formula, by spending directly on devolved matters in Scotland.
The candidates to be the next Prime Minister, meanwhile, have been keen to tell people in Scotland whether or not we are 'allowed' to decide our own future.
And the original version of the UK’s Withdrawal Bill contained sweeping provisions which effectively allowed only Westminster and the UK Government to exercise powers in devolved areas.
Part of the genius of the original devolution settlement – and it’s something for which Donald Dewar and others deserve great credit – is that anything which was not specifically reserved, was devolved. New areas could be defined as reserved – but only with the consent of both parliaments.
But even in its amended form, the Withdrawal Bill goes against that founding principle. It gives the UK Government the ability to place new constraints on devolved powers, even if the Scottish Parliament disagrees.
Because of that, the Scottish Parliament refused consent for the Bill. But the UK Government went ahead with it anyway – despite having previously agreed that consent was required.
That is something which has never happened before in the two decades of devolution. It is a clear breach of the Sewel Convention.
And in many ways, the UK Government’s response to the Scottish Parliament’s own EU Continuity Bill was even more remarkable. The UK’s Law officers referred the bill to the Supreme Court.
I know that most this audience will be very aware of that saga. So I won’t go into it in detail.
Essentially, the Supreme Court decided unanimously that although – with one exception – the Bill would have been within the legislative competence of the Scottish Parliament when it was passed, the subsequent passage of the UK’s Withdrawal Act meant that parts of it were no longer within competence.
But it is worth quoting a recent reflection on the case from Lord Reed, the Deputy President of the Supreme Court. He said:
“The consequence is that it is legally possible for the UK Government to react to the passage of a Bill in the Scottish Parliament by making a reference (to the Supreme Court) and then persuading the UK Parliament to amend the Scotland Act so as to render the Bill invalid.”
The fact that this is legally possible is in itself remarkable. But the fact that a UK Government has actually behaved in such a way is extraordinary. It leaves in shreds the supposed safeguards of constitutional convention - or proper behaviour, or indeed honourable conduct - which are supposed to take the place of law in our constitution.
Indeed, it sometimes seems as though the existing frameworks for intergovernmental relations simply cannot bear the weight of Brexit.
All of the Scottish Government’s substantive proposals for Brexit have been disregarded. That includes our compromise proposal that the UK as a whole should remain in the single market and the customs union.
In addition, the UK Government has dismissed the idea that we should have additional powers in areas such as immigration. That’s despite the fact that the end of free movement – something the UK Government has chosen to prioritise in its approach to Brexit - will be deeply damaging to Scotland.
And formal frameworks such as the Joint Ministerial Committee are not functioning effectively. Indeed, they are barely functioning at all. The JMC, as it is called, is meant to bring together the UK Government and the devolved governments. But meetings only happen when the UK Government chooses. And the committee’s decisions are not binding on them, and they rarely seem to influence in any meaningful way the way in which the UK Government operates.
There is currently a joint review of the JMC underway. There have been calls for change from all devolved governments, committees in all parliaments - including at Westminster - and from many academic commentators.
And the Scottish Government has commissioned our own assessment of the changes required, which will draw heavily on academic expertise.
But there is no sign – none whatsoever – that the UK government recognises the need for fundamental change.
Instead, it still seems to support what the Welsh Government Brexit minister recently called a 'get what you’re given type of devolution'.
What’s especially frustrating about all of this, is that it shows an ongoing fear of devolution on the part of the UK Government which is completely unwarranted.
When the Scottish Government has the opportunity to do so, and when it is in our interests to do so, we have consistently shown our willingness to co-operate.
Officials from the four governments are currently working together to consider areas such as agriculture and the environment. They are trying to determine what common frameworks might be needed, if EU law no longer applies in these areas. Scotland is a constructive participant in that process.
We know that Scotland’s closest relationships will always be with our friends and neighbours in the other countries of the UK. And so our willingness to co-operate will continue, regardless of our future constitutional status. But that co-operation must be on the basis of mutual agreement and consent.
Brexit has brought into sharp focus the nature of national and international decision-making in the modern world.
And as a result, it has created a telling contrast between Scotland’s recent experiences within the UK, and Ireland’s experience within the EU. The EU has extended solidarity to Ireland; the UK has sidelined Scotland.
It’s a good example of the fact that for countries of Scotland’s size, sovereignty can be amplified through membership of the EU.
And it raises an obvious question – wouldn’t Scotland be better with the ability to take our own decisions? Isn’t that the best way of building a genuine partnership of equals in these islands?
At present, intergovernmental relations reflect an obvious tension. Devolution has transformed politics in Scotland. It has put beyond any doubt that Scotland is a distinct political community within these islands.
But at the same time, devolution has had virtually no effect on mindsets at Westminster.
Over the past three years we have seen from the UK Government an aggressive assertion of the idea of the supremacy of the Westminster Parliament.
As a result we are now not simply faced with the prospect of being removed from the EU against our will. There is also a growing possibility of a catastrophic No Deal exit as the hard-liners get ready to take full control.
Earlier in my remarks I referred to the democratic deficit which prompted devolution.
Now, 20 years on, we face the most important example of a democratic deficit in Scotland’s postwar history.
The UK Parliament going against the votes of Scotland’s elected representatives in parliament, and also the votes of Scotland’s people in the 2016 referendum. And it is doing so in a way which pays no heed to Scotland’s wishes, priorities and values.
I mentioned earlier the fact that the candidates to be Prime Minister over the last two weeks have been giving their views on whether Scotland will be 'allowed' to decide our own future. More than ever, we need to ask ourselves a fundamental question.
Do we believe, that Westminster should have the ultimate right to determine our future – regardless of what people in Scotland want.
Or do we believe, as the Claim of Right says, that people of Scotland have the sovereign right to determine the form of Government best suited to their needs?
My view is that the paramount principle has to be that decisions about Scotland, are best taken by the people who live here. We can use that as our anchor.
It determines that Scotland must have the ability, if we so choose, to chart a different course and choose a different future - a future as an independent country, playing our full part in the EU and the wider world.
However in doing so, we need to learn from the experience of Brexit. We need to build consensus where we can, rather than provoking confrontation.
That’s why I have suggested talks with all parties about what future powers we can seek. If substantial proposals arise from that, my hope is that the parliament can present them to the UK Government in a unified way.
I know that civic Scotland is also keen to be involved in these discussions – as they were in the run up to devolution – and we will see how that can be accommodated.
And it is why I have announced the establishment of a citizens’ assembly on Scotland’s future.
If this initiative is successful, I suspect that citizens’ assemblies could well become a feature of Scotland’s decision-making during the next two decades.
The Scottish Parliament throughout the last 20 years has often worked to build consensus and seek common ground. And that is the spirit in which I want to continue. The fact that political parties don’t agree on Scotland’s final destination, should not prevent us from travelling as far as we can together.
My speech has ranged over the last 30 years. I want to end with a key moment from the midway point of that journey.
The opening of the new Scottish parliament building in 2004 in many ways marked the end of a slightly troubled start for devolution.
Apart from anything else, it meant we could move on from the delays and cost overruns surrounding the building’s completion.
When the building was opened, Liz Lochhead read out a poem by Eddie Morgan – our first national makar. It’s called 'Open the Doors'. It’s a magnificent poem in its entirety, but I’m just going to read an extract from it today:
We give you our consent to govern, don’t pocket it and ride away.
We give you our deepest dearest wish to govern well, don’t say we have no mandate to be so bold.
We give you this great building, don’t let your work and hope be other than great when you enter and begin.
So now begin. Open the doors and begin.
This parliament, by and large, has lived up to those instructions. We have accepted a mandate to be bold. We have earned and kept people’s consent.
Brexit now presents us with a challenge which is as great as any the parliament has ever faced. We will ensure that our work and our hope remain great as we address it.
We will do everything we can to halt – or, if necessary, to mitigate Brexit.
We will argue for the powers the Scottish parliament needs to face the challenges of Brexit - and we will make the case that these should be the full powers of independence.
We will make a constructive contribution to intergovernmental relations across these islands.
And we will defend, in the words of the Claim of Right, the sovereign right of the Scottish people to determine the form of Government best suited to their needs.
Most of all, the parliament will focus, as it has done for the last 20 years, on measures which improve the lives of the people we serve. We will try to make progress towards a fairer and more prosperous country. And we will try to exemplify the principle that the best people to take decisions about Scotland’s future, are the people who live and work in Scotland.
If we do that, we can live up to Eddie Morgan’s 'deepest dearest wish'. And we can ensure that the next 20 years of devolution, are even more successful than those which have passed.
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