What we witnessed yesterday and on Wednesday in the Scottish parliament, with the introduction of an emergency Continuity Bill, was unprecedented. It’s also immensely complex and worth clarifying why this is genuinely the beginnings of a constitutional crisis.
Since the UK Government introduced their Withdrawal Bill back in July 2017, designed to ensure there is not a colossal black hole in UK law the moment EU law ceases to apply after Brexit, they have been locked in negotiations with both the Scottish and Welsh Governments over its impact on devolution.
To be clear, the Withdrawal Bill directly assaults devolution by permitting Westminster to make changes to areas of devolved law without consent from the Scottish Parliament. 111 areas of devolved policy are affected. All parties in the Scottish Parliament - including the Conservatives - have agreed that the Withdrawal Bill is unacceptable and must be amended to protect devolution.
The Westminster Government made repeated assurances that it would amend the bill to avoid this, yet has failed time and time again to actually do so. You can draw your own conclusions as to the balance of conspiracy to c#ck-up which caused this but be in no doubt, this crisis threatens the founding principles of devolution and the Scottish Parliament.
Amendments introduced by opposition parties in the Commons were voted down by the Conservatives, including their Scottish MPs. Potential progress has been halted by infighting within the Tory ranks, as a historically weak Prime Minister is held hostage by hard-right Brexit extremists, including those in her own cabinet.
With the Withdrawal Bill having almost completed its passage through Westminster, the UK Government have left almost no time to fix it. And to top it off, they’ve left no time at all to do so in the Commons, leaving it up to the unelected pantomime of the Lords to decide the fate of the Scottish Parliament and Welsh Assembly.
The Scottish & Welsh Continuity Bills convert all EU law into domestic law on Brexit day and provide mechanisms to fix any issues which come out of this process. In this regard, they’re just like the UK Withdrawal Bill. However, they also ensure that all EU law in devolved areas comes to Edinburgh and Cardiff, not London. The alternative is the UK Government ruling on devolved areas without the consent of our devolved parliament and assembly.
The Continuity Bill was potentially to be rushed through in one day, as emergency legislation typically is, but the Greens successfully argued for a month-long process. When the issue at hand is the role of the Scottish Parliament, we must as a parliament be given our place to scrutinise, interrogate and debate what is proposed.
This still isn’t ideal, but it is unavoidable and entirely the right thing to do. I understand that MSPs from other parties are frustrated by the process. But throughout this saga the Scottish Government has held regular meetings with all opposition parties, keeping us updated on the situation. When our parliament itself is threatened, the petty disagreements for disagreements’ sake which usually plague us really must be dropped. If we cannot find consensus now, at least with the exception of the Tories, when can we find it?
Devolution aside, the Continuity Bill makes some welcome improvements on the Withdrawal Bill. It retains the EU Charter of Fundamental Rights, which the Greens had argued strongly, protecting our basic civil and social rights. No surprise that a Tory bill had deliberately excluded that.
There are changes the Greens would like to see though. The bill empowers Scottish ministers to make far-reaching changes without proper oversight or scrutiny by MSPs, and, in some cases, without even a vote in parliament.
Some of these powers are necessary. The scale of the changes needing made is truly massive. But this cannot come at the expense of proper democratic oversight. Without scrutiny, Scottish Ministers risk making bad laws: laws that are unclear, inconsistent, and open to challenge before the courts. A minority government, at Westminster or Edinburgh, cannot be empowered over their respective parliaments.
We trust that the SNP and the other opposition parties will hear out our proposals for change over the coming weeks. Four of the five parties of our parliament, despite our differing eventual aspirations for Scotland’s constitutional future, campaigned together to bring the Scottish Parliament into being. It was a long road, with many bumps in the way but with the overwhelming vote of the people it was achieved and has served us well for close to twenty years.
The very principle of Holyrood’s founding is now under threat from a government we didn’t vote for, held to ransom by extremists we would never vote for and as a result of a referendum result we voted against. Now, in this moment of crisis, we must come together to defend the settled will of the Scottish People.
This article first appeared in The National.