The Constitution

Brexit and Devolution: a Quick Primer

, , , , , , 0 Comments

These guys look REALLY pissed

Last night’s Brexit votes and today’s Parliamentary shenanigans have certainly drawn attention to legislative amendments in a way that, quite frankly, I have never seen. Naturally, the Scottish National Party want to be seen to be “standing up for Scotland” (they have to be seen to be doing something, I suppose), but beyond the sphere of a handful of hardened politicos and legal academics, I suspect that there is little appreciation, if any, of what was actually at the core of this debate.

For my first blog in quite a while (I’ve been trying to devote my time to that thing I actually get paid for), I thought, therefore, that I would write a quick primer in order to cut through some of the rhetoric.

What is clause 11?

At present, the Scottish Parliament may not legislate in a way that is incompatible with European Union (EU) Law. Clause 11 of the European Union Withdrawal Bill transposes that prohibition to what will, after we leave the EU, be known as “retained EU Law.” The effect of this, as introduced, was the prevention of any competences whatsoever transferring from Brussels to Holyrood. This was the principal reason for SNP, Labour, Green, and Lib Dem MSPs voting to withhold legislative consent for the Withdrawal Bill in Holyrood.

What did the Lords’ amendment do?

The House of Lords made a number of amendments to the Withdrawal Bill. One such amendment, amendment 26, vastly improved clause 11 of the Withdrawal Bill. The amendment removed the blanket prohibition on legislating for retained EU Law, and replaced it with a clause that was more limited in scope, and would be time limited to a period of two years for UK Ministers to make rules in these areas, and those rules could not have any legal effect after five years. After this period, all EU competences that would otherwise have fallen within the scope of the competences of the Scottish Parliament will transfer automatically to Holyrood.

The Tories voted for this amendment; not being perfect, but being better than the old clause 11, Labour and the Lib Dems abstained; the SNP voted against.

Why did the SNP vote against amending clause 11?

Quite simply, I have no idea. Voting against an amendment doesn’t remove the clause from the Bill, it simply leaves the Bill unamended, meaning the Bill progresses with the original version of clause 11 which the SNP, apparently, so vehemently opposed. By voting against the Lords’ amendment the SNP actually voted FOR the total power grab they purport to oppose.

But the SNP stood up for devolution today, didn’t they?

Quite simply, no. Through today’s pre-planned stunt (Pete Wishart has all-but admitted it was planned) Ian Blackford rendered himself ineligible to vote on today’s crucial amendments, including on continued membership of the single market. SNP MPs had questions on the order paper for PMQs which they were unable to ask as they flounced out of the chamber. Furthermore, having secured a motion to have an emergency debate on devolution (which the Speaker was willing to grant), their walkout meant that there was no one from the SNP to make that application and it was too late for another MP to do so. The SNP’s walkout meant that there was no chance for a debate on Brexit’s impact on devolution.

While I love a bit of Parliamentary theatre (and John Bercow is certainly wrong when he says the public don’t enjoy it), it becomes difficult to justify when it has a material effect on your ability to scrutinise one of the most important pieces of legislation to proceed through Parliament in over 40 years. Furthermore, while Nicola Sturgeon, naturally, has to go along with today’s tomfoolery, it is difficult to imagine a politician who has spent 30 years helping to mould the SNP into a credible party of government approving a stunt that is more befitting of a student union meeting.

The Irish Law distinction between a “gay” and a “homosexual”

, 1 Comment

Ever wondered what the difference between a “gay” and a “homosexual” is? Thankfully, in Ireland, we have Supreme Court authority on this important distinction.

In his dissenting judgement in Norris v. A.G. [1983] IESC 3; [1984] IR 36,  Henchy J. discussed the campaigns of David (now Senator) Norris and the personality trait that distinguishes the plaintiff from a “mere homosexual”:

His subsequent public espousal of the cause of male homosexuals in this State may be thought to be tinged with a degree of that affected braggadocio which is said by some to distinguish a “gay” from a mere homosexual.

For those readers born after 1878, OED defines braggadocio as:

1. An empty, idle boaster; a swaggerer.

2. The talk of such a person, empty vaunting.

So there you have it!

Broadcasting Should Be The Nationalists’ Holy Grail

, , , , , , , , , , , 1 Comment

BBC Scotland
A recent Scottish social attitudes survey found that 65% of Scots would back independence if they were £500 better off. The slogan “It’s Scotland’s Oil” has been the cornerstone of the nationalists’ case for independence for the past four decades, while the unionist case invariably relies upon Government Expenditure and Revenue Scotland (GERS) reports which show Scotland receives more public expenditure than it raises. I would contend that all of these are entirely erroneous.

No nation’s people have ever voted for independence because they would be a few quid better off.

Scotland has a unique cultural identity. This unique cultural identity is essential to a nation’s independent character, particularly where small countries are concerned. Language, literature, music and theatre played a crucial role in Irish nationalism. However while I would always contest that the very best bits of Scotland’s cultural identity are those parts which are uniquely Scottish it’s hard to argue that Scotland is culturally independent from the rest of the UK. Why else would John Swinney have felt it necessary to reassure Scots that they’d still be able to watch EastEnders in an independent Scotland?

It would seem odd therefore that, despite the fairly broad competence of the Scottish Parliament and Government there has been virtually no shift in Culture policy under the SNP. The work to establish Creative Scotland was begun while Frank McAveety was Culture Minister, with concrete proposals emerging by 2006. The Gaelic Language Act was introduced to Parliament by Peter Peacock in 2004. The only major celebration of Scottish Culture in recent years has been the disastrous “Homecoming Scotland”, which was initially the brainchild of Jack McConnnell. Even then, “Homecoming” appealed more to wealthy American tourists’ sense of Scottishness than our own.

Of course, the zenith of Culture policy is broadcasting – which is presently reserved to Westminster. It is through broadcast media that the vast majority creative output is consumed. In their first term in power the SNP recognised the importance of broadcasting to the nationalist cause. They established the Scottish Broadcasting Commission, who recommended the creation of a dedicated Scottish television network.

Similarly the Scottish Government’s National Conversation considered the question of Broadcasting. Their consultation document proposed as an interim measure that:

  • Responsibility for MG Alba should be devolved to the Scottish Government.
  • The Scottish Government should be granted the competence to establish a “Scottish Digital Network”.
  • The creation of a Scottish division within Ofcom.
  • The creation of a Scotland-wide Channel 3 licence, to be regulated by Ofcom Scotland.
  • Assigning Scotland a share of broadcasting revenues (i.e. from spectrum sales and licence fee), with the ability to vary the licence fee for Scotland.

The SNP dominated Scotland Bill Committee has made similar recommendations relating to the devolution of broadcasting, though such a move has not attracted the political onus that devolution of Corporation Tax has received. However even if the SNP were successful in having broadcasting devolved to Scotland it would take years to implement any substantial shifts in policy.

If the nationalists’ want to be certain of victory in an independence referendum then they need to foster a greater sense of independence within Scotland’s culture. And to do that they need to do more than hold the occasional festival of Scottishness or commemorate 700-year-old battles. Promotion of the gaelic language will play an important role in the development of Scots culture. So too will the promotion of literature, music and the arts. However in order to engage with every section of Scots society broadcast media are required.

The development of Scots broadcasting will be crucial to making Scotland culturally independent. John Swinney sought to reassure Scots they could still watch EastEnders. However in a culturally independent Scotland, nobody would want to.

1 2 3