DEVOLUTION in Scotland has entered a “new era of Westminster override”, a public law and human rights academic has claimed.
Professor Aileen McHarg has highlighted in a new article how Brexit has led to UK Government ministers acquiring new powers to act in devolved policy areas which she claims is “highly problematic” when most Scots feel Holyrood should have the biggest say in how the country is governed.
She said there has been a “re-emergence” of the democratic deficit which led to devolution in the first place, with a “significant” amount of Brexit legislation enacted by the UK Parliament without the go-ahead from the Scottish Parliament.
Green MSP Ross Greer and SNP President Mike Russell have insisted achieving independence is the only way Scotland can ensure decisions affecting the country are made in Scotland.
Prof McHarg said in her explainer: “Devolution in Scotland has entered a new era of restrictive powers, Westminster override, and constitutional subordination.
“This is highly problematic in circumstances in which a significant majority of Scottish voters feel the devolved institutions ought to have most say over the way in which Scotland is governed.
“It also calls into question the extent to which devolution is still able to perform its constitutional function of ameliorating the democratic deficit in the governance of Scotland, arising from the asymmetry of the UK’s territorial composition, and political divergence between its territorial units.
“There has been a re-emergence of the democratic deficit that provided the major impetus for devolution: ie, the UK Government and Parliament are controlled by parties supported by only a minority of Scottish voters.”
Prof McHarg goes on to talk about some of the ways in which Westminster has used Brexit to - what some politicians might describe as – “grab” powers from Edinburgh.
She highlights how six Brexit-related Bills have been enacted without the consent of the Scottish Parliament when the country voted overwhelmingly (62%) to remain in the European Union.
She references how this has gone against the Sewel Convention, which states that the UK Parliament will not normally legislate in relation to devolved matters without the consent of the devolved legislatures.
Prof McHarg added: “Brexit has also reconfigured devolved decision-making competences in another way. UK Government ministers have acquired new powers to act in devolved policy areas, for instance under the UK Shared Prosperity Fund which, unlike the EU funding schemes it replaces, bypasses the devolved institutions altogether.
“The development of devolution in Scotland prior to Brexit was a bottom-up process, with the UK institutions responsive – and largely deferential — to local demand for change. The Sewel Convention similarly ensured respect for devolved autonomy.
“However, a significant amount of Brexit and Brexit-related legislation has been enacted by the UK Parliament without the consent of the Scottish Parliament – six Bills at the latest count.
“Indeed, the constitutional standing of the Sewel Convention has been a major casualty of Brexit. Despite the fact that it was also put on a statutory footing by the Scotland Act 2016, the Supreme Court in the first Miller case held that it remained merely a convention, and hence was legally unenforceable. This has left the devolved institutions with no means of contesting the UK Government’s views on whether devolved consent is required for particular provision in UK legislation, or whether a refusal of consent can legitimately be overridden.
“Thus, Brexit has exposed the continuing democratic weakness of Scottish voters, and Scottish political institutions, within the UK constitutional order.”
Prof McHarg also talks about how the Supreme Court has “set about refashioning” parts of the Scotland Act.
“The Supreme Court has set about refashioning s.28(7) of the Scotland Act – previously understood as a symbolic reassertion of Westminster’s continuing sovereignty – into an active, and potentially far-reaching constraint on devolved legislative freedom,” she added.
“While the Scottish Parliament may amend or repeal particular pieces of UK Parliament legislation in devolved areas, it may not, according to the Supreme Court, attempt to condition the exercise of Westminster’s legislative powers by creating general rules about how such legislation is to be interpreted or operated.”
Greer said with independence, Scotland would be able to spend more time on public services and less time trying to defend the powers it has.
He said: "The proudest achievements of the Scottish Parliament have come when we have broken from the outdated Westminster consensus.
"We cannot go backwards, especially not at a time when so many people are suffering as a result of skyrocketing prices and a cost-of-living crisis which the Tories are making worse rather than tackling.
"It is only with independence that we can ensure that decisions impacting Scotland are made here in Scotland. With the full powers of a normal nation we can invest in our public services and build a fairer, greener future, rather than having to spend time, not to mention hundreds of millions of pounds, defending the powers we have and mitigating cuts and austerity that Scotland has rejected time and again."
Russell added: "Aileen McHarg’s conclusion regarding the undeniable weakening of devolution is clear - the choice is now is between accepting fewer powers and a reduced ability to serve Scotland, or taking full responsibility for ourselves and our future.
"The Tories have consistently lied about what they are up to, and now Labour is aiding and abetting those lies because it too is fearful of the verdict of the Scottish people.
"There is inevitability about the choice that has to be made and denying Scots the ability to make it isn’t a strategy that can last."
