With the fall of Boris Johnson commanding attention, Richard Parry reviews important policy developments in the same week that set the stage for the next phase of constitutional change.
Dramatic events in London last week pushed even further under the radar some important developments on the constitutional front. Boris Johnson’s letter to Nicola Sturgeon on 6 July was friendly in tone but did not engage with any issues of democratic legitimacy on a second independence referendum, stating that ‘I cannot agree that now is the time to return to a question which was clearly answered by the people of Scotland in 2014’. This all-purpose answer implied total discretion for the UK government – the time will never be right if there would be any danger of a yes vote. More damagingly, candidates for the Johnson succession are getting drawn into yet more categorical statements of that position.
Without UK support, the Scottish Government (SG) has to start from faith in its right to pursue a referendum, but even that is lacking. Aileen McHarg reviewed the issues authoritatively in her CCC blog of 1 July, before the Lord Advocate’s submission to the Supreme Court was published on 5 July. Dorothy Bain confirmed that she will not assert the legality of the referendum bill – ‘in the present case, the Lord Advocate does not have the necessary degree of confidence ….that a Bill would be within devolved competence in order to ‘clear’ such a statement’ (paras 3-4).
She asks the Supreme Court, unprecedentedly in a Scottish case, to resolve in advance whether a draft bill ‘relates to’ a devolved matter. This requires (para 13) an awkward divergence from the position of her predecessor in the 2021 Court of Session case of Keatings v Advocate General that the courts should consider competence only after legislative passage. In paras 16-19 she more or less sets out the position that the proposed referendum is advisory and has nil direct legal effect and so is within competence. So, why does she not clear it? The SNP craves the legal reassurance they obtained from David Cameron in 2012, especially because that contained the political implication that a yes vote would be implemented, but risks handcuffing themselves from moving forward. Is that the point of the exercise?
Meanwhile Labour leaders made a pair of speeches in London on 4 July that might cause problems for their future policy development. Anas Sarwar told the Fabian Society that 'in the coming months, Scottish Labour will be launching a series of papers outlining-… how we can strengthen Scotland in a reforming, changing, modernising UK'. But surely Labour’s action is currently with Gordon Brown’s constitutional commission, launched in December 2020 and due to report sometime soon? Sarwar said this exercise will be ‘complementing the work that Keir Starmer has asked Gordon Brown to do’ but the Scottish leader’s ideas seemed to plant the trees rather than lay the ground. They included a legal duty to co-operate between UK governments, statutory ‘joint governance councils’ to preplace the ‘failed and collapsed’ joint ministerial committees, and a ‘Senate of Nations and Regions’ to replace the House of Lords ‘so that our smallest regions, including those within Scotland, have a strong voice’.
These are familiar Labour themes - a rational functional distribution of powers between levels of government, institutions of co-operation that can in practice be sidelined or downgraded, and the blunting of nationalism by building up sub-regions within Scotland and Wales. It is less clear that the ‘devolution with the nationalism taken out’ characteristic of the UK-centric Labour governments in London, Edinburgh and Cardiff from 1999 to 2007 can be rebuilt more than fifteen years on. The leeway Sarwar has obtained to float policy ideas now might be taken back as the party works towards a UK manifesto it feels it can sell to England.
Keir Starmer’s speech to the Centre for European Reform seemed to represent the convergence of Labour with the Remainer wing of the Conservatives in accepting Brexit and seeking issue-by-issue adjustments rather than re-entry to any EU concepts and institutions: ‘under Labour, Britain will not be re-joining the EU. We will not be joining the single market. We will not be joining a customs union…we will not return to freedom of movement to create short-term fixes’. The single market is the conceptual framework for the interlinked nature of the EU project and by cherry-picking in his speech a list of matters where he wants to negotiate easements of the Brexit settlement, Starmer seemed to be making it difficult for himself to set out a more imaginative approach to the EU nearer to election time.
It is understandable for an opposition party to seek to neutralise some issues and shift political discourse on to ground where it has relative advantage. But by adopting the governing party’s analytical frame of reference the opposition sets up tensions as it seeks to be ‘sound’ on a growing list of issues – for Labour, nuclear deterrence, immigration, fiscal responsibility and Europe. This is profoundly uncomfortable for Labour in Scotland given the way that Scottish perspectives on these issues differ from those in England. For both them and the SNP, relying on clearance from London on policy development is a risky course in the months ahead.