THE USE of Section 35 by Westminster has highlighted the “basic incoherence” of the devolution settlement, according to a leading political historian.
And conflicts between the Secretary of State for Scotland and the Scottish Government will continue even if Labour win the next General Election, Richard Finlay told the Sunday National.
Unlike previous Scottish secretaries of state – like Labour’s Willie Ross and even Tory George Younger who attempted to stand up for Scotland’s interests in the UK Cabinet – current Secretary Alister Jack has attracted criticism for failing to mitigate the worst of Westminster’s policies.
In particular, there has been an outcry over his decision to use Section 35 of the Scotland Act that set up devolution and which allows Westminster to veto bills passed by the Scottish Parliament.
Seen as a “nuclear” option, this has now been used for the first time against the Gender Recognition Reform (GRR) legislation, even though it was passed by a majority of MSPs, with supporters from all parties.
Its use was announced by Jack who was then accused of being a patsy for Westminster machinations.
“Alister Jack is caught between a rock and a hard place,” said Professor Finlay, of Strathclyde University. “The trouble is that if he stands up [for Scotland], he has to go against his colleagues, and given the recent performance of the Tory Party, he is probably quite reluctant to do that.”
Finlay argued that the move against the GRR bill could be seen as political opportunism that would go down well with Tory voters in England as well as in Scotland.
He said the “big danger” for the UK Government was if the move backfired and it was thrown out of court.
No matter who wins in court, however, the use of Section 35 made the inherent contradictions of devolution more apparent as it proves that power devolved is power retained, said Finlay.
“The danger of something like that is that it starts to polarise the argument either into unitarism, where you get rid of devolution, or independence. And the difficulty is that if they get rid of devolution, they will just move more people over to independence. You do wonder who is advising them on this,” Finlay said.
Before devolution, Secretaries of State for Scotland would use the “threat” of Scottish nationalism to get what they wanted.
“They would say that if they didn’t get it, it would be a boost for the SNP,” pointed out Finlay.
However, this changed with the advent of devolution in 1999, although the conflict between the Secretary of State for Scotland and the devolved Parliament was initially masked by the Labour Party being in power at both Holyrood and Westminster.
“Once you get into the era where you get the SNP and the Tory UK Government, that is when this conflict starts to emerge and it will inevitably continue because the SNP will never win power in Westminster,” Finlay said.
“If it is Labour or the Tories in power, as long as the principle divide in Scotland is between independence and the Union, you will always have that kind of tension because you will have a Secretary of State for Scotland who will effectively always be a Unionist.”
One way around this would be if the SNP ended up with the balance of power at Westminster and formed a coalition with Labour but Finlay said he couldn’t see that happening.
“It would be more of a supply and demand kind of situation, I think,” he said.
“What all this does is highlight the incoherence in the devolution settlement in the sense that power devolved is power retained. The problem is you have five million Scots, three million Welsh and one million in Northern Ireland, all completely dwarfed by the population of England.”
Finlay said that former prime minister Gordon Brown’s advocacy of a kind of federalism for the UK did not make sense either.
“What you would have to do for a federal system to work is that basically you would have to abolish England,” said Finlay.
“Unless there is English regionalism, which English people are unlikely to accept, you will have major problems because a federal system will only work if you have groupings that are about the same size. If one is too dominant, it becomes a real problem.
“The point of federalism is the dispersal of power across a number of bodies so that no one dominates – think of the US and Germany. That can’t be achieved without the abolition of England as a political unit.”
