Is the Continuity Bill the most boring constitutional crisis in history?

Is the Continuity Bill the most boring constitutional crisis in history?

by Murdo Fraser
article from Friday 9, March, 2018

OUTSIDE THE POLITICAL BUBBLE, no one seems the least interested in the latest drama at Holyrood. The introduction by the SNP government of the EU Continuity Bill, its response to what it rather hysterically calls a “power grab” by our Westminster government, may well be taking up a huge amount of parliamentary time, but there is no evidence of any public concern on the issue.

The Continuity Bill is the Scottish Government’s counter to the EU Withdrawal Bill at Westminster. The SNP’s oft-stated objection to the Withdrawal Bill is that there are aspects of devolved policy, in areas such as agriculture or the environment, control of which is returning to the UK from Brussels, and where it is proposed that the powers should not be immediately devolved back to Edinburgh. This is, according to the SNP, contrary to the devolution settlement.

The position of the UK Government is that it accepts that powers should be devolved, but there are certain areas where it makes sense for there to be common frameworks that apply across the whole of the United Kingdom. In an area such as agriculture, Scottish farmers will want to be able to sell their produce on an unrestricted basis across the UK domestic market. But, to do so, we need to have uniform rules, for example on food safety.

So it surely makes sense, on any objective basis, for common frameworks across the UK to be established. And even the SNP accepts this. The dispute has therefore become about how these common frameworks are agreed, rather than any point of principle about their existence.

And here, to date, is where a failure to reach agreement has halted progress. For the SNP want the Scottish Government to have an effective right of veto over the terms of these common frameworks, essentially holding the rest of the UK to ransom. A similar right would, by the same logic, apply to Wales and Northern Ireland. This hardly seems a sensible way to ensure the smooth operation of the UK domestic market post-Brexit.

The stalemate in discussions between the UK and Scottish Governments led last week to the introduction of the EU Continuity Bill at Holyrood, the SNP’s attempt to “fill the gaps” in the Scottish legal system that will be caused by Brexit, as an alternative to what is in the EU Withdrawal Bill. And yet it is a solution that causes more problems than it solves.

There are three major issues with the Continuity Bill.

Firstly, the Presiding Officer of the Scottish Parliament has ruled that the Bill is beyond Holyrood’s powers, and it is not competent for the Scottish Parliament to pass it. This ruling has been ignored by the SNP Government. For a Party who continually demand that others respect their devolution settlement, it is indeed a rich irony that they are defying the Parliament’s own Presiding Officer. 

Secondly, the SNP is forcing the Bill through Parliament under emergency legislation, despite the fact that there is no emergency. There is no requirement to have this Bill on the statute book within a matter of weeks, when we are not due to leave the EU for at least another year. And that use of emergency legislation will mean that there is insufficient Parliamentary time for proper scrutiny and debate of what is an incredibly important piece of constitutional law.

Thirdly, the Bill as introduced is deeply flawed. This is the view of legal experts such as Professor Alan Page of Dundee University, who says in evidence to the Scottish Parliament: “I have considerable doubts over whether the Bill as introduced does constitute an effective solution to the challenge the Scottish Parliament will face”. Commentary from the Law Society of Scotland on the Bill indicates that there are a huge number of issues with the original draft that require to be addressed before it would make good law.

And yet, despite these three serious concerns, the SNP is determined to press ahead, giving rise to the concern that this is no more than a dry run for a future independence referendum bill, which they would seek to push through Holyrood notwithstanding that it would be legally incompetent to do so, and undoubtedly would be ruled as such by the Presiding Officer.

The comment has been made by Professor Jim Gallagher that the Continuity Bill is not intended to become law, but is simply intended to put pressure on the UK Government to amend the EU Withdrawal Bill to be more compatible with the devolution settlement. In this he is undoubtedly correct, despite protestations from SNP ministers to the contrary. 

I have already observed the irony of a Party which claims to respect the devolution settlement ignoring a ruling of the Presiding Officer on the Continuity Bill’s competence, and on using the emergency powers to force this Bill through without scrutiny. But there is another irony here still richer, and that is that all the powers under debate are those which the SNP actually want to see retained in Brussels, and not devolved at all. Indeed, if the SNP had its way, we would be re-entering the EU, and every single one of the powers it is presently complaining about would be returned in their entirety to the EU, and not exercised any closer to home.

Ever since the Brexit referendum result, the SNP has been flailing around trying to find a political message which will drive up support for a second independence referendum. The talk of “power grabs” is designed with precisely that objective in mind, in the hope that the Scottish people will rise up against Westminster refusing a Scottish Government veto on the detail of common frameworks. 

Sadly for the SNP, there is no evidence whatsoever of any public sympathy for its position. The default public view in relation to Brexit, even from those who voted Remain, seems to be: “Let’s just get on with it”. Deeply frustrating as this must be for the SNP, nothing they seem able to say or do is giving this issue any traction with the voters.

Indeed, it is worse than that for the SNP, because they are actively operating against the interests of the 38 per cent of the Scottish population who actually voted for Brexit, over one million Scots who are now airbrushed out of SNP history. And that number includes more than a third of current SNP voters, who are totally uninterested in seeing powers over farming, fishing, and the environment return to Brussels, as the SNP demands.

Failing an agreement on the EU Withdrawal Bill between the UK and Scottish Governments, it is likely that the Continuity Bill will complete its parliamentary passage, as Labour and Liberal Democrat MSPs at Holyrood (shamefully for so-called unionists) support the SNP’s stance. Ultimately, it may be up to the Supreme Court to rule on whether this legislation is valid or not. 

Perhaps the kindest interpretation that can be put upon it for now is that the whole exercise is a waste of parliamentary time. More accurately, it is simply a grandstanding opportunity for SNP Ministers whose only interest is to cause constitutional confusion and chaos in their Party’s narrow self-interest.

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