By Stephen Bailey

The bottom-line fact of UK Constitutional Law is that under the legislative devolution ‘settlement’ set up by Tony Blair’s New Labour in the late 1990s, an election to a devolved legislature CANNOT deliver a mandate for separation from the rest of the UK to any political party. This is because the Constitution is a matter reserved for the sole consideration of the national UK Parliament at Westminster, regardless of what’s in a party’s manifesto (i.e. separation from the rest of the UK), or that separation from the rest of the UK is the reason for the party existing. ONLY winning a majority in an election at the Union Parliament at Westminster can deliver a constitutionally legal and democratic mandate for separation from the UK to a party. A referendum win would provide a democratic mandate for abolition, but as such polls are only advisory, would not provide a legally binding commitment to do so.

Winning an election to a devolved legislature can deliver a mandate for a party to form a devolved administration at Holyrood (or Stormont in Northern Ireland (NI) and the Welsh ‘parliament’). Its function will then be to look after Scotland’s (or NI’ or Wales’) day-to-day matters ONLY (i.e. all matters that aren’t reserved for Westminster’s consideration), and that’s all, no other mandate is received.

Westminster is the legislatively sovereign national Parliament of the UK and the Prime Minister of the day leads the UK Government. His or her Cabinet of Ministers are the national Cabinet of the UK and the Ministers are national UK Ministers. They have UK wide authority to speak on matters that are allocated to them by the Prime Minister.

Holyrood is a sub-national layer of devolved administration, not the national government of an independent sovereign country. It is just the Scottish branch of the UK national executive. Its job is to look after all areas of concern not reserved to Westminster. The same applies to Stormont and the Welsh ‘parliament’. All other matters of national importance are the concern of the national UK Government at Westminster, not Holyrood (or the other sub-national devolved legislatures in Northern Ireland and Wales).

The party that wins the election at the Holyrood (or Stormont or Welsh) executive has spokespeople responsible for areas of policy that fall within their devolved remit, given to them by their party’s leader. They are not ‘Ministers’ of a sovereign national ‘Government’. They can all meet and discuss policy (as long as it’s not reserved for Westminster) and make decisions about matters delegated to the devolved legislature in their part of the UK, but they are NOT a Cabinet of Ministers in the way that the national UK Government Cabinet of Ministers are, who, under UK Constitutional Law, can debate and pass laws on ANY matter at any time, including devolved matters (though under the Sewel Convention, they will not do so unless absolutely necessary. However, it must be noted that this convention is not legally binding and the UK Government is NOT legally required to receive the consent of Holyrood (or Stormont in NI or the Welsh ‘parliament’) before doing so).

Besides, across the entire UK, the electorate holds ultimate democratic sovereignty, not any parliament, assembly, or other devolved legislature. They authorize their representatives (MPs) to carry out a programme of policies that they approve of (laid out in the MPs manifesto) by voting for them in a UK General Election.

Under UK Constitutional Law, the national Parliament at Westminster holds ultimate legislative (law making) sovereignty, on behalf of and authorized by the electorate in a UK General Election (i.e. it draws up and passes legislation to enact laws from their manifesto that the electorate have authorized them to).

Holyrood, the Welsh ‘parliament’ and Stormont (or the London Assembly for that matter) are NOT sovereign independent national parliaments. The UK is a single (or unitary) country with four constituent parts (Scotland, England, Wales, and Northern Ireland) that pool their resources for the common good, not a ‘union, or loose confederation, of sovereign independent nations’.

It is also important to note that, in a unitary state, ultimate legislative sovereignty lies with the national political power, (Westminster, in the UK’s case) and remains there, even after powers have been devolved to parts of that country (Scotland, Wales, and NI in the UK).

THE SNP IGNORES ITS DEVOLVED REMIT

Somebody has forgotten to tell the SNP (and IRA/Sinn Fein plus Plaid Cymru) the facts of UK Constitutional Law set out above. They ignore their devolved remit, getting involved in reserved matters like the Constitution (secession from the Union) and Brexit (foreign relations/trade), both reserved matters, acting like their part of the UK is independent, and they are her national government and that she is a sovereign country in a loose confederation style arrangement with the UK. The nation (singular) is the United Kingdom of Great Britain and Northern Ireland.

SNP leaders (both Nicola Sturgeon and Humza Yousaf) have paraded around like they are the ‘Prime Minister of Scotland’ strutting ostentatiously around the world stage with exaggerated importance, pretending they’re important. They have set up the trappings of a sovereign ‘national’ government with a ‘cabinet’ and ‘ministers’ when there is no such thing under UK Constitutional Law (as does IRA/Sinn Fein and Plaid Cymru). It’s simply all just a pretence by these anti-UK nationalists/Republicans. They SHOULDN’T be allowed to get away with it.

The SNP has set up ‘offices’ or ‘hubs’ as they euphemistically call them abroad that are clearly designed to be proto-Scottish embassies. They even try to negotiate trade deals with foreign countries (like America, for instance). All of this is outside their devolved remit and contrary to the proper legal function of devolution. The leader of the elected party is the First Minister of the devolved administration at Holyrood, whose function is to look after purely those Scottish matters that aren’t reserved for Westminster. Nothing else. The First Ministers of Wales and Northern Ireland’s job is similar. They should only look after purely Welsh and NI matters that aren’t reserved for Westminster and nothing else.

IT’S INCORRECT TO CALL THE SNP EXECUTIVE A ‘GOVERNMENT’

Therein lies a very substantial problem. The SNP (and IRA/Sinn Fein plus Plaid Cymru) are greatly encouraged in these pretensions when they are described by others, including very lamentably the UK Government, as the ‘Scottish (or Welsh or NI) Government’.

It buttresses their delusion that they are a government of an independent sovereign nation. When this is said for any extended period of time, it will stick in the minds of the public and eventually be accepted as true. When those who want to maintain the Union or other non-nationalists do it, it’s even worse, as it appears that they are accepting it as true, and it greatly bolsters the case for Scotland separating from the rest of the UK. After all, the SNP are bound to jump on this as evidence that the Holyrood administration is the national government of a sovereign country if Scots who want to keep the UK together say it publicly, as are IRA/Sinn Fein in NI and Plaid Cymru in Wales.

When the UK Government or any of its members do it, then it creates the worst problem. This is because people reason that if the UK Government accepts the situation as true, then that must give these claims veracity because they reason that Westminster must know what they’re doing and so the SNP (or IRA/Sinn Fein or Plaid Cymru) must be right. The reality is, however, that ISN’T the case. Why the UK Government isn’t challenging this abuse of the legislative devolution ‘settlement’ with the utmost vigour is one of the most perplexing question of the devolution era.

Added to that, describing Holyrood (and the devolved legislature at Cardiff), as ‘parliaments’ further buttresses the false impression that these bodies represent sovereign national independent governments. They don’t, they are only sub-national devolved legislatures, as is Stormont in NI.

All this is creating forward motion and false credibility for the SNP, IRA/Sinn Fein and Plaid Cymru and aiding their push for separation from the rest of the UK greatly. If there is a ‘believable’ image (even though it’s not true in reality) or public perception, genuine or not, that Holyrood is the national parliament of a sovereign Scotland (or that the ‘parliament’ at Cardiff is Wales’), then it will promote and eventually establish this falsehood as true.

Holyrood is a sub-national layer of devolved administration. Humza Yousaf is the First Minister of that devolved administration which consists of spokespersons, not ‘ministers’ in a ‘cabinet’. He and the SNP need reminding of these facts of constitutional law at every opportunity. No mercy or let up should be applied to this. If the SNP repeats this fallacy then they should be corrected with the maximum robust bluntness. The same technique should be applied when dealing with Irish Republicans/other anti-UK nationalists (IRA/Sinn Fein and Plaid Cymru) who abuse the legislative devolution ‘settlement’ in NI and Wales to promote breaking up the UK.

Let’s not give him and the SNP (the Irish Republicans or Plaid Cymru either) any airs and graces that they don’t deserve. Don’t increase their ability to pursue their separatist, anti-UK agenda. Always call them by what they really are and will always remain-Holyrood (or Stormont or the Welsh ‘parliament’), a sub-national layer of devolved administration with its spokespeople AND NOTHING ELSE.

NB: The article does not represent the views of Scotland Matters.

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