London’s Supreme Court, sitting in judgement on its Scottish colony, has ruled that parts of the Scottish Government’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill exceed the powers of the Scottish Parliament.
The judgement is absolutely specific that the Scottish Bill breaches both the Scotland Act, the original devolution settlement, and the Tory/DUP government’s recent European Union (Withdrawal) Act, which rolled back devolution, grabbed powers from the Scottish Parliament over previously devolved areas and wrenched them back to Westminster. The Tory/DUP European Union (Withdrawal) Act Schedule 4 specified that it overruled the Scotland Act devolution settlement.
If you carefully read the judgement, especially paras 47 to 65, the Supreme Court has gone still further than ever before in saying that neither the Scotland Act nor the Sewell Convention in any way limits the power of the UK Parliament to legislate for Scotland, even in devolved areas, without any need for consent from Scottish ministers or parliament. They even go so far as to specifically state that London ministers have an untrammelled power under the Scotland Act, without needing consent from Scotland or specific further endorsement from the Westminster parliament, to impose secondary legislation on Scotland.
It is a long judgement but its heart is at para 53:
That conclusion is not altered by the other arguments advanced by the Lord Advocate. In relation to the first argument (para 47 above), a provision which made the effect of laws made by the UK Parliament for Scotland conditional on the consent of the Scottish Ministers, unless it disapplied or repealed the provision in question, would for that very reason be inconsistent with the continued recognition of its unqualified sovereignty, and therefore tantamount to an amendment of section 28(7) of the Scotland Act. In relation to the second argument (para 48 above), the question before the court is whether, if the Bill were to receive Royal Assent, section 17 would be law. If not, there would be no question of its having to be disapplied or repealed by the UK Parliament: it would be of no legal effect whatsoever (“not law”, in terms of section 29(1) of the Scotland Act). It is therefore no answer to an argument that section 17 of the Bill would be outside legislative competence, to say that it could be disapplied or repealed. In relation to the third argument (para 49 above), this submission resembles the Lord Advocate’s first argument, and for similar reasons we are unable to accept it. A provision which imposes a condition on the legal effect of laws made by the UK Parliament, in so far as they apply to Scotland, is in conflict with the continuation of its sovereign power to make laws for Scotland, and is therefore equivalent to the amendment of section 28(7) of the Scotland Act.
Having asserted that the London Parliament and Government can do anything to Scotland it wishes under its “sovereign power to make laws for Scotland”, the judgement logically asserts that the power grab contained in the EU (Withdrawal) Act was perfectly legal. As the Supreme Court said in its published explainer for the media:
What is the effect of the UK Withdrawal Act on the legislative competence of the Scottish Parliament in relation to the Scottish Bill? The UK Withdrawal Act is not a reserved matter but it is protected against modification under Schedule 4 . Several provisions of the Scottish Bill in whole or in part amount to modifications of the UK Withdrawal Act. These are: section 2(2) ; section 5 ; section 7(2)(b) and 7(3) [103-104]; section 8(2) ; section 9A ; section 9B ; section 10(2), 10(3)(a) and 10(4)(a) [108-110]; section 11 [111-113]; section 13B, section 14, section 14A, section 15, section 16, section 19(1) and section 22 (to the extent that these provisions relate to section 11) [114-118, 120-121]; section 26A(6) ; and section 33 and Schedule 1 paragraphs 11(a) and 16 [123-124].
The judgement is as expected and reaffirms Scotland’s colonial status and the London view that the Scotland Act did not recognise any inherent Scottish rights, but rather graciously handed down from above some powers that London may change at a whim, exactly as though Scotland were an English County Council.
Given all this, the part of the judgement which states that it was not in itself outside the competence of the Scottish Parliament to pass a bill which relates solely to the domestic effects of EU withdrawal, is a very small victory indeed – and utterly irrelevant in the wider scheme of things.
Anybody in the SNP today touting this judgement as a victory, has either not read it, or is worryingly comfortable with vassal status inside the UK Establishment.
Devolution is not just a sop, it is a trap. It is a device by which the SNP has its energies sapped dry in a Herculean effort to maintain Scottish services and public welfare while being perpetually undercut by Tory austerity. The Scottish government are trying to defend the Scottish people with both hands tied behind their backs, while a unified Tory media attacks them relentlessly for every public service failure in Scotland, as though the Tories were not the cause.
Not only was the Vow of increased powers for the Scottish Parliament, which turned the tide of the 2014 referendum on Independence, an abject lie; what the Supreme Court has affirmed is that the English Tories and Northern Irish unionists can strip powers from the Scottish Parliament at will.
What the Supreme Court have done today is to provide crystal clarity that Scotland has but two choices; complete subservience to Tory England or Independence. All else is fiction.