BRAVO for the Welsh Labour government. Yes, you heard me right.
After the Parliamentary Labour Party’s shameful capitulation on amendments tackling the Internal Market Bill’s devolved power grab, it was surprising to see their comrades in Cardiff come out of the traps so quickly with a legal challenge to the bill. Surprising but exciting – and what happens with the Welsh Government’s legal challenge could be very significant for Scotland.
It’s pretty desperate that we have had to be dependent on the House of Lords to ameliorate the bill. The sum total of all their efforts is very thin gruel and does not go anywhere even halfway near to addressing the Scottish Government’s concerns.
Earlier in the week Labour peers sat on their hands when it came to amendments seeking to keep state aid a devolved matter and withdrew support for an amendment challenging the UK Government’s plans to engage in direct spending in devolved areas.
When the amendments trundled back to the Commons the official opposition didn’t field a single backbencher to speak up for devolution. Whilst they only have one MP left in Scotland, they are not usually averse to putting forward MPs from other parts of these islands to opine on Scottish affairs, but on this occasion their backbenches were deserted.
The power grab is in direct breach of “The Vow” signed by Ed Miliband, the Labour leader in 2014. But Labour don’t care. They are happy to wheel out Gordon Brown to talk about federalism when independence is riding high in the polls, but when it comes to defending the existing devolution settlement, they are missing in action. No wonder they are finished in Scotland. Their only real use now is as a salutary reminder of what happens to those who take their power base for granted.
When challenged, their hapless front bench spokesperson, a new Labourite with a Manchester constituency, was shrill in her outrage that SNP MPs should dare to question her holy writ.
Drew Hendry’s actions on Wednesday evening expressed the frustrations of all of us who made the journey to Westminster to speak against the bill.
READ MORE: 'Just doing my job': Drew Hendry on the Tory Brexit bill and Commons suspension
It fell to the SNP to defend devolution. In the chamber, at least, we were doomed to fail, but posterity will record that – with the honourable exception of Wendy Chamberlain, the Liberal Democrat MP for North East Fife who spoke very powerfully on several occasions – it was only SNP MPs who stood up for devolution. That we were doomed to fail simply reinforces the case for independence.
But on Wednesday afternoon even before the bill had passed in the Commons, the Welsh Labour Government upstaged their Westminster comrades as their counsel general announced that the bill was an attack on the rights of the Welsh Senedd to act on behalf of the people it represents and that he intended to take immediate action in court to protect those rights.
As well as being the Welsh Government’s chief legal adviser, Jeremy Miles is also a member of the Senedd and the Welsh Government’s European transition minister. He is an impressive politician who has worked closely with Michael Russell on trying to protect the devolved governments’ interests during the Brexit process.
It is fair to say that their strenuous joint efforts have failed, and the only course of action open now is through the courts.
In his announcement, Miles said he had formally notified the UK Government that should the UK Parliament enact the bill in its present form, he intended “to take immediate action to seek a declaration from the administrative court that the ambit of constitutional legislation cannot lawfully be cut down in this way and that the ensuing act cannot be interpreted so as to have that effect”.
What this means is that he will seek a ruling from the administrative court (which sits in England and Wales only) that the Internal Market Act should be interpreted very restrictively so as not to limit the powers the Welsh Assembly already has under the Acts of Parliament which established it and gave it those powers.
This is very significant because it raises the question of whether the Westminster Parliament is really as supreme as its aficionados claim. Can any Act of Parliament be overruled by a subsequent act or are some acts of such constitutional significance that subsequent acts must be read in such a way that they don’t undermine the previous act?
The answer to this question could have considerable significance for the Scottish Parliament in defending Scottish devolution, but it could also have wider significance in relation to the status of the Act of Union and the circumstances in which the British constitution might admit of the dissolution of the Union.
ON behalf of the Scottish Government, Russell welcomed the Welsh Government’s announcement as “an important test of the principles and the legality” of the Internal Market Bill. He said that once the UK Government has replied to the legal notification from the Welsh Government, the Scottish Government “will work with Wales to consider next legal and constitutional steps”.
READ MORE: UK goes ahead with Internal Market Bill without consent from Wales or Scotland
If anything, Scotland is in a stronger position than Wales here given our very different constitutional history.
Our Union with England is based on statute and treaty which long predate the very modern devolved settlement and our devolved parliament has been from the outset considerably more powerful than that of Wales. We have a stronger case than Wales, but it is one that will require to be tested in the Scottish courts under Scots law first, albeit that we may end up side by side with Wales in the UK Supreme Court.
It is an unfortunate state of affairs that the Scottish Government’s chief legal adviser the Lord Advocate is currently embroiled in trying to frustrate the well intentioned Keatings case which seeks to establish whether the Scottish Parliament has the power to hold an independence referendum.
As we enter 2021, his energies would be better spent advancing the case of Scottish democracy by defending the devolved settlement and testing whether Holyrood can hold an independence referendum with a carefully crafted Scottish Government bill for the courts to consider.
Boris Johnson and his scheming anti-democratic Tory mates have been beaten in the courts before. It is time for us to look seriously at doing that again.
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