Black & White

George Rosie has an article over at Bella Caledonia, on the "ties that bind" Holyrood. Rosie has the reservations of Schedule 5 of the Scotland Act in his sights, which enumerates all of the topics over which Westminster retains exclusive legal authority. He argues that:

"What I find odd about all this is that while Schedule Five of the Scotland Act of 1998 act has given Holyrood plenty of reasons to fret, grumble, complain and even rebel, very little of that has taken place over the past decade or so. It seems that the unionist parties who have ruled the Holyrood roost for most of the past fifteen years or so have been content to accept the restraints put on them by Westminster. The ties that bind have also been the rags that gag."

Its tone troubles me. For the Scottish nationalist, trudging slowly towards full autonomy, more powers for Holyrood is an axiomatic good. But the same is not necessarily true for the federalist or devolutionist, planning for a United Kingdom. Her key question is not - will this settlement leave the Scottish Parliament with the greatest authority possible? - but are legislative powers situated at the best level across the union?

Rosie consistently manages to put the worst construction possible on any retention of power at Westminster. Keeping responsibility for regulating health professionals? Ludicrous. Supporting judicial independence by paying salaries out of Britain's Consolidated Fund? Contempt for the Scottish Parliament. Harmonising corporate law, intellectual property and consumer protection regimes? Baffling.

The refusal to devolve powers is almost invariably taken as a slight on the wisdom of the Scottish people or a venal political stitch-up. Certainly, Some of the reservations of the Scotland Act are politically motivated. But working out how legislative power ought be distributed in federal and confederal systems is complicated, involving difficult decisions between competing values. 

We needn't look far for examples. Take the distribution of legislative power set down in the Canadian Constitution Acts (and let's take no sides in Quebec's internecine troubles with Ottowa). Unlike the Scotland Act, the Canadian enactment enumerates powers reserved exclusively to the provincial governments.  The limits of federal legislative power are enshrined in section 8 of the first Article of the Constitution of the United States, though have been embroidered by free-wheeling judicial analysis of the commerce clause .  The scope of these federal powers have been a continuous point of controversy in American law and politics.

 

Rather than seeing these issues through the Holyrood vs Westminster lens, let's think of it in terms of the framing of an independent Scotland's constitution after a Yes vote.  It is easy to see how the politics of national equality can vie with the demands of greater local democracy. Take the issue of welfare entitlements. Should Scotland have a nation-wide rate of unemployment benefit?

For many of you, the answer to this question will seem obvious: of course we should. Delivering basic social security is a key function of the social democratic state. It shouldn't matter whether you are jobless in Inverary or jobless in Cowdenbeath, unemployed in a wealthier area, or looking for work in a poorer one, urban or rural or in-between: we all have a shared, collective interest in securing a decent standard of living for all citizens, wherever they live. Social security serves a national redistributive function. If you find these arguments compelling, you're in good company: they were at the heart of the Calman Commission's decision not to recommend devolving additional powers over taxation and welfare control to Holyrood. 

On the other hand, what about local democracy? If Glasgow wants to adopt and pay for a more generous welfare scheme, why should centralising power in Edinburgh prevent them? If the Tory-Liberal coalition in Dumfries and Galloway want to cut back on housing benefit, oughtn't that to be the prerogative of its residents?  

Alternatively, rather than either of these extremes, we might consider more nuanced models of co-decision, allowing a provision of a national base rate, which local authorities would be empowered to vary within bands, determining the precise rate to be paid to those looking for work in Argyll and in Fife respectively, paying for the difference out of their own budgets. 

I'm not arguing that if you favour transferring authority for these matters from Westminster to Holyrood, you must favour redistributing power from Holyrood to local authorities. Pertinent differences distinguish the two regimes. But it is complicated, not reducible to devolution of power Good, reservation of power Bad.  My big problem with Rosie's Bella piece in the extent to which it elides these credible arguments about how legislative authority should be distributed in a wider union - whether that union is the UK, or an independent Scotland.

These aren't nice academic points of political theory. 2013 gave us a good example of these tensions and competing interests. During 2012, the Scottish Government let Lord Justice Leveson lead the investigation into press reform across the UK  - suddenly rediscovered its authority over press regulation after his report was published - and hastily dropped the idea of a distinct Scottish regulator after Lord McCluskey produced absurdly reactionary proposals. 

Indeed every "Sewell motion" in Holyrood, now called "legislative consent motions", recognise that sometimes, it is useful for Westminster to legislate on devolved matters, securing uniformity of regulation across the UK.  This installation of an SNP government has not changed that.  In the last two sessions, Holyrood has passed fifty-six of these motions. In an independent Scotland, proposing to retain the same currency and similar levels of market integration with the rest of the United Kingdom, we can expect similar arguments about the harmonisation of our legal regimes to be made.  Scottish consumers buying goods from English merchants online and vice versa? That underlines the importance of similar consumer protection regimes. And so on, and so on.

 

Rosie is right that ignorance of the Scotland Act's reservations of power is politically problematic. In my experience, MSPs frequently want or image they hold power over topics which are reserved, and behave as if some devolved powers are out of their control, taking their cues from London.  The first is a frustration, the second means opportunities to make the most of Holyrood's existing powers are missed.  

But knotty questions about how the legislative power should be distributed in a wider union are not unique to the UK. They're incorrigible features of any country, with multiple layers and concurrent institutions of government. Like Rosie, I favour Scottish independence, but I worry that his vision is too Manichean, making too little effort to understand and make intelligible the alternative point of view. 

Black and white thinking: the unbroken fever of contemporary Scottish politics.