Devolution is not enough to save Scotland from Boris Johnson

What a mess. Out of power but still in office, Boris Johnson’s resignation yesterday and the announcement of a contest for the leadership of the Conservative party, brings an end to the sorry Johnson saga but does little to tell us about what happens next.

 Paradoxically it was a sex scandal involving someone else’s behaviour, rather than his own, which brought Johnson down, but the real reason was his serial dishonesty which made him unfit for office. That was known before he ever became leader, and the Tory party should not be allowed to get away without owning the mess created by their election of him as their leader. Nor can he be tolerated as a caretaker PM while they try to get their act together.

All they can talk about is the need to save the Tory party. Only occasionally do they remember to talk about saving the country and, by that, of course they mean England. Not Scotland, not Wales and not Northern Irelandm despite the political turmoil caused there by the ineptitude of Johnson’s so called oven-ready deal.

In truth there is a wider story about Johnson’s premiership and that is the damage done to the UK at home and abroad. 
The UK’s reputation abroad has been trashed by legislative proposals designed to breach international law. While at home what was always a fragile constitutional settlement has been shown to be inadequate to stop Trumpian levels of behaviour. British democracy failed badly when Johnson was able to continue as Prime Minister despite having unlawfully shut down parliament to get his way.  Our politics failed when, rather than holding him to account and rallying to avoid the damage of a hard Brexit, opposition politicians voted like lemmings for an election which, in the face of Johnson’s crude populism and lies, could never be won in England. And the remaining countries of the UK got dragged along the same path regardless of the very different politics of Scotland, Northern Ireland and Wales.

Devolution has not been enough to save us from this mess and that is a crucial message to take to the unionist camp in the next independence campaign.

All power should be subject to checks and balances, but the checks and balances of the British constitution have not been enough to stop the excesses of this Tory Government under Johnson. The changes made to the Scotland Act after the 2014 referendum and the Smith Commission were supposed to give us the most powerful devolved parliament in the world, but that is clearly not the case. Neither power nor sovereignty are shared and, under Johnson, the doctrine of parliamentary sovereignty has been subverted to put as much power in the hands of the Westminster executive as possible. This need not be the case, especially if it were to be legally recognised that devolution could and should mean shared power and sovereignty.

There was an inkling of a more democratic approach to sovereignty in the UK in the judgment of the UK Supreme Court (UKSC) in the prorogation case. However, since then, rather unfortunately, the court case prompted by the Scottish Government’s attempt to incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots law for reserved as well as devolved matters has resulted in a degree of retrenchment by the court with a judgement based on a very old fashioned notion of parliamentary sovereignty and a very narrow reading of the Scotland Act.

I fear this could happen again when the Supreme Court hears the Lord Advocate’s reference concerning the competency of the Scottish parliament to pass a Bill providing for a second independence referendum. It will be imperative that the argument is made for a more expansive reading of the modern British constitution than we saw in the UNCRC judgment. 
So, I was more than a little disappointed to read this week that the Lord Advocate “does not have the necessary degree of confidence” that the Bill is competent. That is her legal opinion and I respect it but, in my opinion, there are good arguments to be made for the proposition that Holyrood might competently legislate for #indyref2. I had hoped that these arguments would be advanced before the USKC. Certainly, that is what I had in mind when I first advocated the strategic gambit of testing the Bill in court. I hope they may yet be made in the Lord Advocate's expanded written argument.

Amid all the turmoil on Wednesday, Johnson still found time to write another section 30 letter with the familiar refrain of ‘Now is not the Time.” The irony of this, landing just as the Tories were themselves demanding a re-run of the vote of no confidence vote they had only three weeks ago, was highlighted by my colleague David Linden MP.

If ever there was a dead parrot, then it’s the strategem of repeatedly asking for a permission that’s doomed to be refused. So, it's good that we are moving on from this. I reiterate that, well argued, win or lose, the Supreme Court case will further move things on, but not unless it is accompanied by other initiatives, including a constitutional convention and policy papers answering the economic and trade questions that trouble the soft Nos. I know some important work is going on behind the scenes on policy papers, and I hope for an announcement that the Constitutional Convention promised in January 2020, before the pandemic, will be set up in the autumn.

This week I participated in some very productive work on the drafting of a transitional constitution for an independent Scotland. Although the work is being done under SNP President Mike Russell's auspices, it has involved parties other than the SNP and grassroots Yes groups. This is the way to go especially if we are looking at a plebiscite General Election.

One last thing. I was very sad to read on Twitter this week statements from a small number of Yes groups that they won’t ‘stand with or platform any person or organisation that demeans or dismisses others’ human rights’. On the face of it this is a statement we could all get behind, except I have no doubt that it is aimed not at human rights deniers but at women and men who don’t accept that gender is more important than sex. This is so not the way to go if we want unity and a diverse campaign for independence.

If these tweets were aimed at people like me who wish to preserve the sex-based rights of women set out in the Equality Act, and the rights of same sex attracted people, there are two things the tweeters need to understand. First, human rights are universal and, second, equality is not just a concept of a British Act of parliament, it is also protected under Article 14 of the European Convention on Human Rights (ECHR).  Freedom of belief and freedom of speech are likewise protected under Article 9 and Article 10 ECHR. I don’t think I am revealing anything which would be a surprise if I say that the transitional constitution for an independent Scotland will be signed up to the ECHR.  Equality is for all and trans people, women, and the same sex attracted, all have equal human rights under the ECHR, including the right to hold gender critical beliefs or indeed, the belief in gender identity or queer theory, and the right not be discriminated against for holding these beliefs or for not holding them. That is the law, and it was reaffirmed in another major court judgement this week. There can be no place for discrimination or selective protection of human rights in an independent Scotland, nor in the campaign that takes us there.