ENOCH Powell, the English nationalist MP, famously quipped that “power devolved is power retained”.
By this, he meant that the whole system of devolved government in the UK rests on the goodwill of Westminster and the British Cabinet. With a mere stroke of the pen, most of the powers devolved by Westminster to the Scottish Parliament could be revoked or over-ridden.
We now know this could easily have occurred during the early phases of the Covid-19 crisis.
According to information leaked to The Sun newspaper, early last year Conservative ministers openly discussed using the draconian 2004 Civil Contingencies Act to over-ride the devolved administrations in dealing with Covid-19.
This Act gives the UK Government sweeping dictatorial powers in any national emergency. Several Tory ministers recommended to Boris Johnson that he use this legislation to stop Holyrood and the Welsh Senedd from deciding on their own, divergent coronavirus response.
Leading the charge for this proposal was Commons Leader Jacob Rees-Mogg, an arch English nationalist and champion of imposing centralised Westminster rule. Rees-Mogg has form in this regard.
He recently referred to the new Internal Market Act – which allows Westminster to veto trade and business support policies introduced by the devolved administrations, if deemed unfair to England - as "one of the best pieces of legislation passed through this House".
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As we know, the Boris Johnson government chose to introduce specific new legislation to deal with the pandemic - the Coronavirus Act 2020. This actually included granting the Scottish Government extra powers to order lockdowns and (effectively) close the Border.
At the time, in early 2020, the Tory government was acting like a headless chicken regarding the pandemic, with the Cabinet believing the crisis would blow over by the summer.
In passing new legislation, the flustered Tories were anxious to “be seen to doing something”. They did not realise that the SNP government in Scotland would gain in reputation from its more measured and empathetic response to dealing with the crisis.
Could the Tories really have used the existing 2004 emergency powers legislation to over-ride Holyrood, as Rees-Mogg and the Tory ultras originally wanted? The 2004 Act was an update of earlier, Cold War legislation designed to deal with the aftermath of a nuclear attack.
With the threat of nuclear war reduced, the definition of a national emergency was widened in 2004 to include terrorism and civil unrest. In other words, this was a typical Blairite extension of state powers under the guise of “protecting” society.
Section 22 of the Act gives ministers the authority to implement curfews, ban travel, block assembly of people, confiscate property and deploy the military on our streets. But in an extreme emergency, the Act also allows individual ministers (on their own volition) to suspend Habeas Corpus and extend the life of a parliament indefinitely.
Just imagine if that minister was, say, Priti Patel. No wonder the Tories originally tried to water down the provisions of the 2004 Blairite legislation. Possibly the libertarian fringe in the Tory Cabinet was embarrassed by the precedent of using the Civil Contingencies Act against Covid and preferred to leave it in cold storage.
Interestingly, the 2004 Act gives Scottish ministers considerable powers in an emergency situation. But can Westminster use the Act to impose its will over Scotland?
Here there is some ambiguity in the wording. Section 1, clause (4) clearly states that “A Minister of the Crown, or, in relation to Scotland, the Scottish Ministers …”
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In other words, the intention here appears to be that Scottish ministers are responsible for implementing the Act north of the Border – or not, as they see fit. Ultimately, of course, this would have to be adjudicated by the UK Supreme Court.
The Act also enjoins Crown ministers to consult with their Scottish colleagues though (as we know) such consultation can be perfunctory.
Which leaves the matter of the jurisdiction of the 2004 Civil Contingencies Act up in the legal air. Yet that is beside the point. The political lesson is that the act was considered as a means to over-ride the elected Scottish Parliament.
The Tories are out to reduce the powers of the devolved administrations. Independence is the only sure response.
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