In company with me, I expect you were intrigued by the Scottish Government’s latest thinking anent the issue of citizenship in the event of independence. Perhaps you were struck by the underlying tone of the document. One of inclusion, one of attracting more people to settle here.
Me? I derived a source of innocent merriment from the accompanying constitutional debate. Does the SG have the power to work on such issues at all?
I intend to look at the competing claims but, prior to that, let us consider that the independence papers, started by Nicola Sturgeon and now continued by Humza Yousaf, have three core purposes.
Their most obvious function is to prepare the ground for independence. They are an early draft of a post-Union Scotland, clauses in a putative written constitution.
However, they are not solely focused upon the future. They have present intentions too.
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Firstly, they are designed to placate a restless Scottish National Party. The SNP appears currently beset by free radicals, breaking from the nucleus and thus causing instability.
I would not want to exaggerate this. As time moves on, the desire for independence and the onset of a pending election will tend to solidify the party’s chemistry.
However, disquieted members want to see action on independence. Hence these plans. Secondly, publication draws wider attention, beyond the faithful, to the issue of independence. It is an act of contemporary propaganda, as well as future planning. But, hey, welcome to government.
Many Ministerial statements are designed to saddle more than one horse. The real objection to the Scottish Government actions which has arisen this week derives from the subject, not the object. It arises because civil servants in the Scottish Government have been tasked with working on detailed preparations for an independent Scotland, deploying public money in that endeavour.
Again, there are competing constitutional arguments. It can be said that the SNP, particularly in their governing pact with the Greens, have a democratic mandate to pursue the issue of independence.
However, against that, it can be argued that the Scottish Parliament where that mandate is exercised does not have the statutory power to alter the terms of the Union, let alone end it.
You will recall that the Scottish Parliament was established by the Scotland Act 1998. (Incidentally, I will be marking that 25th anniversary by chairing a debate at the Wigtown Book Festival, which is also 25 years old.)
The Act, you will recall, specifies the issues which are reserved to Westminster – with everything else presumed to be devolved. One reserved issue is the constitution of the United Kingdom. We were reminded of this in the controversy which arose this week. It started when Lord Foulkes of Cumnock questioned the UK Government about potential revisions to the Cabinet Manual.
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He wanted to specify that Scottish Ministers should not “stray into reserved areas” and he suggested sanctions, should they do so. The response from Baroness Neville-Rolfe, Minister of State at the Cabinet Office, was that she would “take that point away”, agreeing that any revisions to the Manual should take account of “changes in the devolution settlements.”
So what might arise from these slightly Delphic comments? Will sanctions be applied? Does durance vile now await Jamie Hepburn, the amiable Minister for Independence in the Scottish Government? I think not.
Understandably, though, the SNP seized upon the topic, later describing Lord Foulkes as “a Labour grandee”.
Two random thoughts arose. One, does Labour really do grandees?
And, secondly, a memory. I first recall George Foulkes, from the early 1980s, as a spirited, persistent and effective advocate of Scottish self-government during the Thatcher government.
He had won his Commons seat from Jim Sillars, who founded the breakaway Scottish Labour Party and who, of course, went on to be a prominent and thoughtful advocate of independence.
Perhaps that history helped influence the Foulkes stance, then and since. Pro devolution, but firmly within the Union. But back to today. Consider the comments by Simon Case, Secretary to the UK Cabinet. He said it was “unusual and worrying” for officials to be working on the “break-up” of the United Kingdom.
Be clear. He is not saying that independence is impossible, nor that the SNP should abandon their objective. He is questioning whether SG officials – who, remember, remain part of the UK civil service – should be tasked with preparing for the end of that United Kingdom which they, ostensibly, serve.
Mr Case hinted that new guidance on such matters is in preparation. Which brings us back to the Cabinet Manual, first suggested by Gordon Brown as an alternative to a UK written constitution but actually instigated by his successor David Cameron in 2011.
The manual sets out the laws, rules and conventions affecting the conduct and operation of government. In Chapter Eight, covering devolution, it stresses that day-to-day working should be characterised by “mutual respect and recognition of the responsibilities set out in the devolution settlements”.
Few would argue with that. However, it also notes that “Parliament remains sovereign” – by which, of course, is meant the UK Parliament at Westminster. Which is why, extrapolating from a generic point, Westminster was entitled to proceed with Brexit – although it might have been helpful, in that case, if civil servants had done more preparatory work, rather than less.
Which is why Westminster was entitled to devolve power through the Scotland Act. Which is why, when the independence referendum was held in 2014, it only proceeded with explicit consent from the UK Government in the form of the Edinburgh Agreement.
So do I think there will now be a clampdown on Scottish civil servants? Perhaps gentle, subtle, consensual constraint. After all, the Cabinet Secretary praised the diligence of officials to date in dealing with what he called “edge cases”.
Because, of course, there is politics in play here too. Note comments from the SNP’s opponents. Yes, they condemn the independence papers as a waste of time and money. But few seem prepared to cite them as explicitly unlawful.
Opponents of independence will focus upon making their case for the Union – and urging other priorities. They know that using over-harsh statutory clamps could backfire.
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