According to a clause buried deep within Boris Johnson’s EU withdrawal bill, the law would be changed following the successful passage of the bill to allow the British Government to make unilateral changes to the devolution settlement by way of regulations, without having to seek the approval of the Westminster Parliament. Ministers could make the changes that they see fit by fiat. And not just changes to the devolution settlement as it affects Scotland, Wales, or Northern Ireland, ministers would also have the power to make changes to the Human Rights Act. The powers given to ministers go so far as enabling them to abolish the Scotland Act in its entirety.
The powers that ministers would award themselves were discussed in a report on the Withdrawal Agreement Bill published by the House of Lords Constitution Committee. The committee wrote:
82. There is one significant difference between powers under new section 8C and those under 8B(5) that were discussed in chapter 4. There is no restriction on 8C powers being used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence (i.e. with a penalty exceeding two years imprisonment), establish a public authority, amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, or the Northern Ireland Act 1998.
You can read the full report by clicking on this link –
https://publications.parliament.uk/pa/ld201920/ldselect/ldconst/21/21.pdf
The powers referred to under section 8C relate to “deficiencies” which would arise in law following the UK’s withdrawal from the EU, when EU legislation would no longer apply to the UK. Strictly speaking then, these powers should be used only sparingly, and only in a very limited sphere relating to retained EU law. That is precisely how they are being sold to us. The bill provides that the new powers are to be subjected to a test of “appropriateness” as defined in Section 8(1) of the 2018 Act. However what is approprate is not defined and is left to the discretion of ministers. The relevant section detailing the test of appropriateness in the 2018 Act reads:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate—
(a)any failure of retained EU law to operate effectively, or
(b)any other deficiency in retained EU law,
arising from the withdrawal of the United Kingdom from the EU.”
See http://www.legislation.gov.uk/ukpga/2018/16/section/8/enacted
Now I don’t know about you, but that doesn’t look like much of a test of appropriateness to me. Personally I might think it’s entirely appropriate that you give me all the cash in your wallet, and you might disagree, but if I’m the guy who gets to decide what’s appropriate then you’re giving me the cash in your wallet along with your hard won devolution settlement.
But we need not worry our pretty little untousled heads because our wunnerful British Government has sworn that it’s only going to use these far reaching powers for a very restricted set of purposes and only for a short term period. After all, Boris Johnson cares deeply about Scotland and he’s motivatedly solely by what is in our best interests. The Tory candidate for Angus Kirstene Hair told us so on BBC Question Time, and no one laughed at her at all. Oh no.
The problem however is that Boris Johnson and his government can’t be trusted for as far as a small child could throw them. Not even as far as the next ditch. We therefore are left with the word of the likes of Boris Johnson and Michael Gove as our sole guarantee that the British Government would not use these wide ranging powers to achieve nakedly political objectives – such as for example the effective neutering of the powers of the Scottish Parliament.
We have already seen what happens when ministers twist the arm of Parliament to award themselves more powers. For example when the Government gave itself greater powers to take action against terrorist organisations, Gordon Brown used them to take action against Iceland because of the behaviour of Icelandic banks. We were told that the powers were only going to be used against the threat of ISIS and Al Qaeda, but then they were used against Bjork and some puffins. It’s a safe bet that this bunch of Conservatives will be more than willing to find excuses to extend the range and use of the powers that they’re so keen to award themselves.
The other problem is that once ministers have obtained these powers, they’re going to be very reluctant to give them up again. These are not people who can be trusted to willingly surrender powers that they have to make widespread changes to legislation and law without the scrutiny of Parliament. In the short period of time that he’s been Prime Minister, Boris Johnson has already shown the lengths that he will go to to avoid Parliamentary scrutiny.
Now, the Tories are not going to use this provision to abolish the Scottish Parliament. They may be venal, greedy, undemocratic, and hypocritical, but they’re not actually stupid. Well, some of them at any rate. They know that unilaterally abolishing the devolution settlement would create such a groundswell of anger in Scotland that we’d be independent a week later. What they are far more likely to do is to use this provision to whittle out the devolution settlement from within.
What’s especially concerning however is that this provision comes on top of the proposed changes that the Conservatives have already said that they want to make to the devolution settlement. Michael Gove has already spoken openly about the UK government spending in Scotland on devolved areas of comptence, and making sure that this is branded with a union flag. This will act as a Trojan horse, to gradually reduce the areas of competence of Holyrood. The Tories have never liked devolution, and they are no friends of Scottish political distinctiveness. Within a post-Brexit Britain there is even less place for Scotland to have different political priorities from the rest of the UK.
These developments represent another important material change in circumstances which justify another independence referendum. One of the key promises of the Better Together campaign in 2014 was that the powers of the Scottish Parliament would be enshrined in law and would be put beyond the ability of any British Government to alter them without the express consent of Holyrood. We can see now that was a lie. The British Government is now quite openly declaring that it and it alone has the unilateral right to alter the devolution settlement as it sees fit. That’s not what Scotland was promised in 2014.
This is a devolution settlement that the people of Scotland approved in a referendum in 1997, by a considerably larger majority than Brexit was approved. But you don’t hear any Conservatives saying that the result of that referendum must be respected. You don’t hear any Conservatives saying that their promises and commitments to Scotland in 2014 must be respected. By attacking the devolution settlement, the Tories might like to tell themselves that they are making independence less likely, but all that they are really doing is destroying that union that they claim to love so much. Get out and vote on 12 December and tell them that they’re the ones who are not listening to what Scotland wants. It’s the Scotland Act, not the Boris Johnson Act.
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