by Roseanna Cunningham

With the Scottish Parliament’s first year under its belt, there have predictably been many commentators delivering their equivalent of Report Cards. What has been singularly absent is any serious look at the extent to which both Whitehall and Westminster has accepted, or otherwise, the existence of the Parliament and the difference between reserved and devolved powers.

The experience thus far would suggest that Westminster has every intention of continuing to legislate for Scotland in areas which are properly devolved. Well, they would, wouldn’t they?

The other side of that coin however has been the extent to which the Scottish Parliament has simply accepted each fait accompli with no real protest.

There is a debate to be had here about the powers of the Executive vis-i-vis the Parliament, but with the inbuilt whipped majority that the Executive coalition has we can take it for granted that with very rare exceptions the view of the Executive will end up being ratified as the view of the Parliament. As a result of that, the Scottish Parliament has in its first year set some very dangerous precedents without much thought or debate.

For those of us who were in the House of Commons at the time of the debates over the then Scotland Bill one clause in that Bill stood out as a matter of concern. To ensure that the upstart Parliament in Edinburgh didn’t get carried away with its own power and just to remind everyone that the doctrine of parliamentary sovereignty wasn’t going to be superseded by any little local difficulty 450 miles away, the Scotland Bill contained within it a catch-all power reserved to Westminster which allowed it to go on legislating even in devolved areas. For those not already in the know, the power is contained within Section 28 of the Scotland Act which is the section conferring legislative power on the Parliament. But that legislative power is always going to be subject to 28 (7) which states unambiguously that:

This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

Of course, during those debates in 1998 we were continually reassured that this power was only intended to be used very rarely and would be unlikely to be relied upon on other than very occasionally. Well, despite those reassurances by the then Ministers who are of course now included in the ranks of Scottish Executive Ministers, the reality has turned out to be rather different. And the fact that this has generally been allowed to happen unremarked upon is an indictment of the first year of the Scottish Parliament.

What we have seen is Westminster routinely legislating in all sorts of areas notwithstanding the fact that power has been devolved. And the response of the Parliament? Well, that is the problem because thus far and fairly routinely the Parliament simply responds by agreeing that Westminster should just go on and do whatever it wants to do.

It is certainly the case that many of these matters would be regarded by most commentators as relatively trivial. However that doesn’t apply to all of the instances in which it has happened. ln the normal course of events, the matter is dealt with by way of what has become known as a ‘Sewell Motion’ in the Scottish Parliament. Invariably this is a Motion put down by the Executive to allow Westminster to go ahead and equally invariably it is passed by the Parliament after the simple expedient of the coalition parties in the Executive applying their respective Whips.

Certainly the SNP has on occasion allowed such a Motion to go unopposed. When it came to the equalisation of the age of consent, the fact that the Westminster legislation had commenced before devolution was viewed by the SNP as sufficient reason to distinguish it from the majority. 0n other occasions there has not been the same compelling reason to agree and as a matter of principle it has to be argued that, without such a compelling reason at the very minimum, neither should the Executive.

What is being built up is a catalogue of precedents which will be referred to in the future and will undoubtedly be used politically as an argument when the time finally comes, as it will, that the Parliament does want to make a stand.

No doubt it will be immediately assumed that any such clashes would only come about in the event of the SNP assuming power in Scotland. Certainly at that point it wouldn’t just be the exercise of the existing devolved powers which would come into contention. However, before we even get to the argument about extending powers, it would be a welcome change if the Parliament would simply get on with exercising all of those it has at present.

Nor should it be assumed that all of the already substantial number of precedents encompass only non-controversial issues. ln truth, there has already been at least one instance where there should have been a stand taken by the Parliament and that is during the passage of the Asylum and Immigration Act 1999 at Westminster. The iniquities of this Act do not need to be rehearsed here. What does need to be emphasised is that the passage of that Act made necessary a number of consequential changes to various other Acts which included those covering devolved matters. That was allowed to proceed notwithstanding the serious concern in Scotland, across a number of parties, as to the acceptability of the central proposition of the Bill.

It is also quite clearly true that in exercise of its devolved powers, the Scottish Parliament could in the future revisit those various statutes and amend them back again. But that would take an assertion of political will which is apparently absent from the governing coalition which has thus far shown itself only too willing to allow Whitehall and Westminster to go on behaving as if devolution was not going to mean any actual change in practice.

There is a certain irony in all of this. First, that it goes generally unremarked upon by most observers, even those who whose jobs presumably involve reporting on the Parliament’s business and progress, although credit where it is due, the Law Society of Scotland keeps a careful watching brief on this issue; secondly, that in all the debate about the likelihood of the extension of the Parliament’s powers, no-one has seen fit to challenge the Parliament to start exercising all of the powers it currently actually has; and thirdly, that the Parliament may well be colluding in creating a rod with which it will be severely beaten in the future. That third point is perhaps the most important. After all, the current arrangement is all very cosy between an Executive in Scotland and a government in Westminster who between them, basically agree on most policy proposals which are liable to be put forward in either Parliament.

If the government at Westminster were to change hands, would even the current Executive be quite so sanguine about the continued use of the override power in the Scotland Act? The answer is obvious. That is why a stand should be taken now.