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Scotland’s new first minister must defend devolution like none before

OPINION: More than at any point since devolution, the Tories are trying to claw powers back from the Scottish parliament

Adam Ramsay
Adam Ramsay
21 March 2023, 5.32pm

Contenders to become the leader of the SNP and Scotland's first minister Ash Regan, Kate Forbes, and Humza Yousaf


Andy Buchanan - Pool/Getty Images

First came the attempt to block the Gender Recognition Reform Bill. Next, the suggestion that a long-delayed deposit return scheme for bottles and cans will be vetoed. Now, Westminster’s new energy bill appears to amend the Scotland Act to allow UK ministers to override the Scottish government on rules around offshore renewables.

While there isn’t a consensus either way on independence, the overwhelming majority of Scottish people support the Scottish parliament, believe its powers should be protected and don’t want direct rule from Westminster.

Yet, increasingly, that’s what we’re getting.

In the 2016 Scottish parliament election, every MSP was elected on the back of a manifesto promise, in line with UN guidance – in line with most neighbouring countries – to make it easier for trans people to change their official paperwork to reflect their gender. Through a long process involving multiple rounds of consultation, a law to do this was widely debated. Every conceivable concern you might have with it was aired, re-aired and mulled by MSPs, in committees, public debates, internal party meetings and their private thoughts. Ultimately, in the autumn of last year, an overwhelming majority of them, including members from every party in Holyrood, backed the Gender Recognition Reform Bill.

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The Scotland Office, which hadn’t been through any of that process and is run by a party that has been losing elections in Scotland for 70 years, announced it was going to block the law using Section 35 of the Scotland Act – a power which has existed since the creation of the Scottish parliament, but has never been used.

It turns out this wasn’t just a one off.

Earlier this month, the UK government floated the idea of blocking Scotland’s deposit return scheme.

Now, if trans rights, consumed as they are by the moral panic de jour, can be filed under ‘controversial’, then deposit returns would usually be placed at the other end of the spectrum. They are boring and popular, the product of a campaign by more than 100 organisations, which picked up steam once David Attenborough started highlighting the impact of plastic pollution on sea life.

The basic idea is that litter is bad. If people who buy drinks pay 20p as a deposit for their bottle or can, which they get back when they hand it in, then you get less litter. More waste is recycled, less energy is used making things.

Nicola Sturgeon first announced Scotland would roll out a scheme in 2017, and SNP minister Roseanna Cunningham worked to get it off the ground, supported by new legislation passed by the Scottish parliament in 2020. MSPs went on tours of other countries with similar schemes to find out how they work – they exist, and are very popular, across Europe.

To no one’s surprise, the manufacturers weren’t delighted about being forced to clean up after themselves, and have unleashed intense lobbying to push back against it, spreading, one campaigner tells us, disinformation about how the whole thing will work. Under this torrent of lobbying, the scheme, now overseen by Green minister Lorna Slater, has repeatedly been delayed, but is due to finally launch this summer. The lobbyists are, as you would expect, squealing again.

Then, earlier this month, the Scottish secretary Alister Jack announced that he probably wouldn’t let the scheme go ahead. Until 2020, such a statement would have been absurd: this is a devolved matter. On what grounds could he block it?

But in 2020, as part of the Brexit process, the UK government introduced its Internal Market Act. Under these new rules, regulations on business have to be the same across the UK. To get an exemption – in other words, for the Scottish, Welsh or Northern Irish legislatures to use huge swathes of their powers – they need permission from Westminster.

Take the energy bill, which is currently passing through Westminster.

On Friday, the Scottish parliament’s Net Zero, Energy and Transport Committee published a report on the evidence it has gathered on the legislation. The committee – which is chaired by Tory MSP Edward Mountain – expressed shock at how Westminster had behaved. The legislation, which interacts a fair amount with Scotland because much of the UK’s energy infrastructure – particularly offshore wind – is in Scotland, had first been shown to the relevant Scottish minister the day before it was published. The Scottish government had written to the UK government highlighting a number of issues with the bill but, months later, has had no substantive response.

Most worryingly, the UK government is giving itself the power to pass orders in what it calls “important devolved areas”. While UK ministers will have to consult Scottish ministers when they do so, they do not need their consent: in other words, Scottish ministers will be told, but won’t be able to say no.

Or we could talk about how levelling up funds have been allocated in recent years.

When we were in the EU, the equivalent cash was distributed through Holyrood – all such spending decisions have been made by the Scottish government since 1999.

But the 2020 act, as well as restricting where Holyrood can legislate, also empowered Westminster, allowing it to make spending decisions on things like distribution of money for regional development funds within Scotland. As Scottish minister Richard Lochhead said in a 2021 letter to the UK’s minister for local government, the new approach allows it to undermine key strategies of the Scottish government. How, for example, can Scotland develop a more coherent transport strategy if Westminster is funding projects in Scotland based on its own, different, criteria?

And in some cases, there seem to be direct attempts to exploit what the Tories see as political weaknesses. The A96, which runs from Aberdeen to Inverness and through Scottish Tory leader Douglas Ross’s constituency, has one lane each way for most of its length. There have long been calls from some to dual it, which have been opposed by environmentalists and others. In 2021, the UK government said it ‘could step in’ and deliver the project. Then in last week’s budget, the UK government announced it is funding a bridge, also in Ross’s constituency. Of course, those who want the road or bridge built will be happy, but having two governments running parallel transport strategies is not exactly sensible, and how is the Scottish government meant to meet its climate targets if Westminster keeps randomly funding pork-barrel road projects?

And of course, all of this is before we talk about permission for an independence referendum.

Individually, these policies have their supporters and detractors. But put them together, and one thing becomes clear: the Westminster government is working to attack Holyrood. More than at any point since the start of devolution, the Tories are trying to claw powers back from the Scottish parliament.

When the new first minister arrives, we can expect the UK government to test them by renewing this wave of assaults on Scottish democracy. If they don’t resist, then expect the Scottish parliament to see itself stripped of ever more powers.

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