THE last week in Parliament before summer recess is always a busy one, particularly with ensuring vital laws that people in Scotland voted for in the last election get passed.
That democratic scrutiny – rightly – takes time. We listen carefully to opposition members when they offer constructive suggestions to improve our bills. They have a legitimate role to play in the legislative process. That is how it should be. It helps us as a government and as a nation make better laws.
Our approach here in Scotland stands in stark contrast to that of Westminster. Next week, Scotland’s parliament is also having to deal with a lot of Brexit-related, Westminster-generated business. This parliamentary business features an unusually high number of debates and motions relating to legislative consent for UK bills.
READ MORE: Nine times the UK passed laws DESPITE Scottish Parliament rejection
The Sewel convention came into being to recognise that the Westminster government should not normally make laws on devolved matters without the consent of the Scottish Parliament.
It has been a long-standing convention that acknowledges that the Scottish Parliament is where Scotland legislates and provides for devolved issues such as health, education, rural affairs and justice. It sought to allow Scotland to make laws that suit our needs, interests and values.
Next week there are four Westminster bills for which the Scottish Parliament will be asked to agree with the Scottish Government’s position on consent – and test whether the Sewel convention is working. These bills will have a real impact on people’s day-to-day lives.
The Electronic Trade Documents Bill will allow a range of trade documents that are currently paper-based to be replaced with electronic versions. The Economic Crime and Corporate Transparency Bill aims to prevent the abuse of UK corporate structures and tackle economic crime. Meanwhile, the Online Safety Bill introduces the new offence of encouraging or assisting the serious self-harm of another person.
READ MORE: First Ministers of Wales and Scotland urge UK Government to stop breaching devolution
The Scottish Government supports the policy aims of these three bills and has worked closely with the UK Government to reach a position where the Scottish Government is able to recommend that the Scottish Parliament consents.
Our views and expertise were listened to and that makes a difference – it allows us all to make better law. But Scotland’s government and parliament being listened to is an increasingly rare occurrence.
For the Northern Ireland Troubles (Legacy and Reconciliation) Bill, the Scottish Government’s view is that those who have suffered during The Troubles should be able to obtain justice and that those who committed offences during that time should be held to account.
Because this bill affects the role of the Lord Advocate, the Scottish Government cannot recommend consent for it. Indeed, one provision undermines a key historic principle at the heart of the Scottish justice system.
The Lord Advocate (Dorothy Bain, above) heads the system of criminal prosecutions and the investigation of deaths in Scotland, and decides whether to commence prosecutions. Under the Scotland Act 1998, these decisions are required to be made independently of any other person.
If this Northern Ireland bill passes as the UK Government has drafted it, it will limit the ability of victims of The Troubles to seek justice through the courts, undermine the independence of the Lord Advocate and provide the Secretary of State for Northern Ireland with the power to amend devolved legislation without the Scottish Parliament’s agreement.
If the Scottish Parliament agrees with us and withholds its consent for this bill, the Sewel convention should mean that the UK Government respects the decision of our parliament, takes action to respond to the concerns raised, or doesn’t apply the legislation to Scotland.
That is how the convention operated until Brexit. Since the first Brexit legislation in 2018, the UK Government has ignored the consent decisions of the Scottish Parliament on nine occasions.
The Scottish Parliament has already withheld consent to a number of important bills going through the UK Parliament.
The Retained EU Law Bill is currently in its final stages at Westminster, yet the UK Government is ignoring the decision of the Scottish Parliament to withhold consent and intends to pass the bill as currently drafted, riding roughshod over devolved competences.
The Sewel convention is supposed to protect the Scottish Parliament from UK Government overreach. Westminster’s failure to respect it is really only a symptom of a deeper-seated issue. Under devolution, Scotland will always be subject to the whims and priorities of a Westminster government, which will always see devolution as a gift to be taken back whenever it suits.
The very existence of the convention points up the democratic deficit at the heart of devolution: real power still sits with Westminster.
The only way to address that is by voting for a different future, where Scotland’s right to legislate on our priorities in a way that meets our needs, interests and values is not dependent on Westminster giving or taking away permission.
The only way to ensure that Scotland always gets the laws it votes for, by a government it votes for is through independence.
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Callum Baird, Editor of The National
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