5 October 2011

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?


  1. A very good question it is too but this is a potential bear-trap for Labour.

    You rightly highlight the potential for a constitutional crisis - but to be isolated in a crisis is not what the SNP needs right now. I think the SNP would be left exposed to one of the Unionists' strongest arguments - that the SNP are habitual shit-stirrers, interested in picking a fight where none currently exists.

    That dynamic is easily turned on it's head however if the SNP let Labour do the initial running on this - let Labour build-up enough momentum calling for the Scottish Parliament to with-hold legislative consent that Labour would lose face if they backed down and then join them in opposing the Welfare Bill.

    A constitutional crisis ensues but the battle-lines are not faux grievance fuelled, break-up obsessed SNP against the rest - it's the Scottish Parliament against the Tories.

    Within Scotland there's only going to be one winner in that scenario... our Portly President.

  2. Perhaps it is so worded, in order that, this time it is Labour which "picks a fight" with London. In other words Nicola gets Jackie to be the bad guy.

    I've been waiting impatiently for someone in Labour's Scottish branch to have the nerve to stand up to the Tories and not be afraid to be accused of forgetting that their mortal enemy is now Yellow, not Blue.

    It could be a good thing for Scotland. Jackie proposes it, Nicola backs it, and Scotland's representatives work together for the good of the Scottish people.

  3. I don't think anybody is really flushing anyone out as I suspect Labour and the SNP would be agreed on the problems this Bill will cause.

    They probably will refuse legislative consent but in a sense that won't solve the problems because the Bill will pass and the measures will be implemented and local authorities and other agencies in Scotland will have to find ways to deal with the problems which ensue.

    That I suspect will be the real focus of debate. I am sure MSPs will take the chance to denounce Westminster along the way but that's not actually going to help deal with the issues.

  4. Wow!

    Ok, no doubt this fight would be the 'good fight' that could potentially disrupt the union, rendur asunder everything that the Scotland Act 1998 contains written or evolving understandings.

    What would happen though? What would the result be?

    A whole new Act, meticulously prepared, taking years to delicately delineate every aspect of the various powers of both parliaments. There is nae chance of this happening, it would take years to accomplish, cost absolute fortunes and unless Holyrood was prorougued then we would probably have voted for independence by that time anyway.

    Also any such new Act must surely restrict the powers of the Scottish Parliament in an atmosphere where Scots are demanding far more powers. So would full fiscal automony beckon to help disentangle the mess of any sustained fight over benefit reform? It would make sense, if we don't want the same cuts as the tories will surely inflict on the rest of the UK. And if we have full fiscal autonomy.............then why would we need the rest of the UK. Of course the politically unthinkable may occur, that Holyrood could be disbanded, potentially leading to unrest, perhap UDI and even armed resistance...............indeed!

    My opinion is that the SNP won't fight too hard on this one, won't potentially cause disruption of the whole system at present.

    We are on the cusp of a pretty clear cut (many will disagree with me, but....) independence referendum. Sure at present majority opinion is for far more powers over outright independence. However think where we are now compared to even 2 or 3 years ago regarding public opinion. Former unionist tactics (scare, too wee, poor etc.) no longer work, the public is getting better informed to enable them to make a likewise informed choice.

    An independent Scotland is now inevitable in my opinion, this state of affairs may well result in a Constitutional crisis. Too many if's, but's and maybe's, however we will be clearer after we know how the SNP will play this. however I think a smooth transistion to independence in 2015 is better than one borne of unrest in 2012.

  5. I'd love for this to be a right Royal stooshie ending in Holyrood being deemed sovereign but choosing to remain within the UK in the referendum.

    That'd be dandy.

  6. Aidan Skinner,

    In your dreams.

    You do realise that you are a bit different?

  7. I don't understand why people think it would lead to a constitutional crisis. It would certainly not lead to the Welfare Bill not being passed. It will be passed and it will become law in Scotland. Even if we refuse to agree to a sewel motion on it we will still have to deal with the consequences in devolved areas because I'm afraid we cannot simply tell Westminster to sod off. The only way we could do that is to remove their power to legislate for Scotland full stop.

  8. Indy

    Sure............but are you discounting any other action rather than just lying down and taking it?

    The government seem to be taking the confrontational path.

  9. The clear solution to this discord is that Scotland's people take independence and have the welfare system they want out of the UK limitations.

    It's not complicated; the Brit ants just have to decide what is more important to them.

    Social democracy practiced in a country that prides itself on such values.

    Or Brit nationalism which isn't actually a national identity but is a financial empire. Or rather it was an empire but not has its nukes to pretend it still is.

    What is so absolutely wonderful about the union that they absolutely must keep it rather than create a decent, just country.