When is consent not consent? This kind of question can be complicated, and when it becomes the focus of both public debate and legal process disagreements and misunderstandings can arise because of nothing more than woolly use of language. Most of us have an instinctive idea of what consent means, but until we actually discuss it openly we can’t rely on the assumption that we all share the same definition.
Of course issues around sexual consent have begun to be debated properly, and about time too. The #MeToo and #IBelieveHer campaigns have brought attention to the issue like never before and allowed all-too-familiar male attitudes of sexual entitlement to be challenged.
On this occasion though I’m talking about a different kind of consent. It’s the consent which is given by the public, through a democratic process, for power to be exercised on their behalf. And where different powers are given to different authorities, sometimes they need each other’s consent to make decisions beyond their own normal remit.
This is the debate which has been playing out in scrutiny of the EU Withdrawal Bill, the UK Government’s legislation to achieve a semblance of legal continuity if they ultimately succeed in dragging us out of the European Union.
There are big differences between these kinds of consent of course. The dry and technical issues of legislative competence are a world away from the deeply personal and intimate questions about sexual consent. But surely some of the principles must be the same, or we’d be using a different word altogether.
The idea of consent must have real meaning; asking for consent can’t just be a token gesture. To ask for consent means acknowledging that consent is needed, and that there’s no right to take unilateral action. To give consent must surely mean agreeing freely, without threats or coercion. Consent can only ever be for the time being; it is something that can be withdrawn later. Most fundamentally, consent must be respected.
Yet not a single aspect of this forms part of the UK Government’s understanding of what it means to ask for legislative consent from the Scottish Parliament. This week David Mundell, the Secretary of State for Scotland in Theresa May’s Government, made it very clear that his intention is to legislate in ways which fundamentally change the devolution settlement whether or not MSPs give our consent. And the legislation he intends to pass will itself place no requirement for consent to be given for the future use of powers being created by the Withdrawal Bill. A “consent decision” will be required, but a decision to agree, to refuse or to say nothing will all be counted as that “consent decision”.
Of course whether we like it or not (spoiler: I don’t) Scotland does remain part of the UK at present. The devolution settlement isn’t absolute, and it only means that the UK will not “normally” interfere in devolved issues without consent. It doesn’t say it can never do so. It probably made sense to many people back in 1998 when this new Scottish Parliament was being turned from abstract idea into reality, to allow such a backstop just in case of some unforeseen national emergency which prevented the devolved machinery from operating normally. But that’s not the situation we’re in. Brexit is a huge political crisis of course, but it’s one we’ve been dealing with for nearly two years now. It is not preventing the normal exercise of devolved government, and it is not an excuse to invoke this emergency backstop.
For the UK Government to have spent those two years utterly failing to decide what to do about the Customs Union, our rights of free movement, shared environmental regulation, the Irish border or pretty much any other issue, yet to have decided already that it’s vital to throw a wrecking ball at the devolution settlement tells us everything we need to know.
The Conservatives opposed devolution in the first place. Over the years they, or at least the majority of their Scottish Party, have appeared to grow acclimatised to its existence. But they continue to display a basic contempt for the idea that there is a distinct political will in Scotland, and a distinct democratic legitimacy invested in Scotland’s Parliament.
This attitude came across most clearly in David Mundell’s final words to MSPs on the Finance and Constitution Committee on Thursday. Denying the accusation of a Brexit power-grab by the UK Government, he tried to reassure us that nobody in Whitehall wanted to suddenly crash in and take control of crofting policy. The implication was clear – you MSPs can get on and deal with your eccentric little Scottish issues, and just leave the real politics to us.
That is not something I can ever accept, and nor should the Scottish Parliament.
This article first appeared in The National.