Holyrood to tell Westminster to sod off on welfare reform?

One of the reasons I'm such a bore about the Scotland Act 1998 (in addition to my own inveterate tendencies in that direction) is that perceptions of what Holyrood can and can't do will inevitably effect what Holyrood will and won't do. A bland saw if ever there was one, but there is, I think, a neglected point hiding within it. Sometimes, there is legislative will but the relevant powers are reserved. Sometimes one is tiptoeing along the line of reserved and devolved matters, or touching on EU law or fundamental rights, and trying not to lose one's balance and take a damaging and delaying tumble into the courts. Although we tend to associate Nationalists are being natural aggrandisers of their own jurisdiction, keen to collect any power over matters Scottish going begging - there is also the curious phenomenon of treating devolved matters as if they were reserved. One example, discussed on this blog, concerned the summer's News of the World scandal, and the Information Commissioner's Operation Motorman report.  Although  risking obnoxious and extended self-quotation, this excerpt articulates just the sort of thing I'm getting at:

Legislation in Westminster is by no means easy.  However, its members and its government are at least mostly relieved of the difficulty of asking: is doing policy X within our powers at all? They enjoy a basic liberty of action. Not so, with Holyrood. To use a picturesque phrase sometimes deployed, the Scottish Parliament was not born free. The limits of the Scotland Act - and the way powers are implicitly granted rather than explicitly enumerated - call for a high level of legal sophistication if the full extent of the parliament's powers are to be understood. This can be particularly challenging if you stray outside the familiar, well-trodden areas of Holyrood legislation. Unfortunately, there are not many signs of such sophistication, either in the press, or on the benches of the parliament.

Paradoxically, as with press regulation, this limited understanding of the full extent of the Scottish Parliament's existing powers results in an SNP government and parliamentarians treating issues which are within their powers as being concerns properly limited to Westminster only.  Alex Salmond issues statements of the sort quoted at the beginning of the piece, which leaves the profound but erroneous impression that he and his Ministers and the Scottish Parliament are fettered and tied. They can only sit back, pull constructive faces, demand better consultation with Westminster authorities - and wait for Sewel motions, which are passed on the nod. It is worth remembering what these legislative consent motions are all about. Conventional instruments rather than mandated by strict law, at their most basic, these motions are used where Westminster legislates concerning devolved matters. Although many pieces of legislation emerging from Westminster might concern commingled reserved and unreserved issues - when you see a Sewel Motion, the proposed Westminster Bill before you addresses, at least in part, devolved powers and consent is simply not solicited in areas reserved to the London Parliament.

This phenomenon popped into my napper as I read this piece by the Burd at Better Nation, talking about Holyrood's examination of Iain Duncan Smith's Welfare Reform proposals, debated later today on the following motion from Nicola Sturgeon:

"That the Parliament notes the Welfare Reform Bill that is currently being considered by the UK Parliament; regrets that the far-reaching proposals contained in the bill are being pursued against the backdrop of substantial cuts to welfare benefits announced in the June and October 2010 UK budgets; further regrets the impact that these cuts will have on some of the most vulnerable individuals and families in society and on the local authority and third-sector organisations committed to supporting vulnerable people, and calls on the UK Government to pursue a welfare system that is properly financed, simple to understand, lifts people out of poverty and makes work pay."

Hardly a ringing endorsement of the Her Majesty's government's approach to welfare reform, you might well think, but tone is more in sorrow than in anger. To regret is not to deplore, nor is to lament to oppose. How then is Sturgeon's motion to be understood? Does it suggest that a consent motion would be passed by the SNP majority - albeit with rhubarbs about the policies of the Westminster government - or insofar as devolved consent is required, imply refusal? Labour's Jackie Baillie is clearly interested in the same topic, and has proposed the following, flushing-out amendment to Nicola's motion, adding...

“... and is otherwise minded, subject to consideration by the appropriate committees, to oppose the forthcoming legislative consent motion pertaining to the Welfare Reform Bill.”

Baillie's amendment certainly puts the Scottish Government on the spot, and it'll be interesting how the SNP representatives vote on it. The fatal moment is not now, however. Like the Scotland Bill, the Welfare Reform issues fall to be considered by a committee of the Parliament, before a final decision is taken. The Bill itself is a dizzying mix of devolved and reserved matters. What if, as Baillie commends, Holyrood said - no thanks chums, we're not giving our consent? In strict law, Westminster is the sovereign parliament, able to exercise its will however it wishes, untrammelled and unfettered. In theory, the Tory-lead government could just inflict the whole scheme on us, consent or no consent, powers devolved or reserved. However, as many of my readers enthusiastically remind me - and here I very much agree with them - often, politics trumps law.  The Burd rightly talks about the potential for a constitutional crisis; not a crisis in the constitution per se, which is tolerably clear, but a political scandal with constitutional ramifications: the dull thump of political discord, conflicting mandates, and differences of opinion.  Although a subset of blimpish bloviators on the Tory benches - the priapic devotees of Westminster sovereignty - might conceivably call for such a stuffing if Holyrood rejected their Bill, the political trickiness of the thing is obvious. Perhaps most significantly, if such cavalier sensibilities prevailed, the commitments of the Sewell Convention - that Westminster won't pass Bills that provisions on devolved matters without first obtaining the consent of the Scottish Parliament - would be revealed as watery, insubstantial. "Standing up for Scotland" is a familiar Nationalist refrain. Nicola Sturgeon's assessment of Duncan Smith's reforms is hardly sympathetic, but is bedevilled by a certain gingerly-does-it passivity. The question to be asked of the SNP majority is, will they do more than oppose in word and concede in deed?