By Alasdair Galloway

I see from the National that George is up to his old tricks of making life more difficult at every turn for the Scottish Government, which in the political arena is fair enough. The role of the Opposition is after all, to oppose, but the reality of George’s recent interventions is that they are very dangerous.

He is quoted on Twitter/X: “When @UKHouseofLords returns on Monday I will be intensifying my campaign to stop illegal spending by @scotgov.”

There are two obvious problems with this. First that campaigning for independence has been an SNP staple since it was founded. Indeed, it is what was founded to do – the vehicle to take Scotland out of the UK to independence. It would be impossible to deny this simple fact – though it might be argued that if anything, as a party (rather than a government), it should have been doing more of it since 2014 in order to turn that decision around. Moreover, it appears in every SNP election manifesto (even if in 2016 it was contingent on a major change detrimental to Scotland. Brexit for instance), for instance at the last Holyrood election in 2021.

However, we hve to set against this that there is a very, well established view that Civil Servants ought not to be involved in political activity – for instance speaking in favour of the party of government. The role of the Civil Servant is to be neutral – to follow ministerial instructions as long as they are not contrary to law.

Thus, Foulkes argument is that as the Scottish Government has no devolved powers over the constitution – quite the reverse, as it is one of the powers reserved to Westminster – so why are Civil Servants working on documents intended for another independence referendum, powers for which are retained at Westminster and might never happen?

However, does the fact that the Scottish Government has no devolved powers make such work unlawful, particularly when a second referendum was at the heart of their manifesto? How does it stack up against the fact that Iain Duncan, a former Minister in the Scotland Office, has said the department “serves no real purpose” (as John pointed out a couple of years ago https://talkingupscotlandtwo.com/2021/08/20/scotland-office-serves-no-real-purpose/) and that “there wasn’t much to do”. Despite this, its expenditure rose by £1.2 million to £8.5 million.

How does it stack up against that part of Michael Gove’s ministerial empire (mainly “levelling up” – stop laughing!) including the management of intergovernmental relations – ie relations between Westminster, and all three devolved administrations. 

The House of Commons Library report on intergovernmental relations three years ago doesn’t make happy reading, emphasising as it does that the whole thing is largely informal, mainly relying on a Memorandum of Understanding, which established a Joint Ministerial Committee (JMC) written ten years ago when the UK was still in the EU,  when there was no Internal Market Act, which, it is argued, will require considerable expansion of the process. The Scottish Affairs Select Committee has criticised not only the non-statutory nature of the JMC as well as the lack of any adequate dispute resolution mechanism.

One could easily think Westminster doesn’t care whether devolution doesn’t succeed or even fails. Let’s take an example of  ‘failure to agree’, readily predictable from the Internal Market Act.  Scotland, being anxious to stay close to the EU, opts for food standards (or animal husbandry standards) similar to those in the EU (eg so that Scottish producers can defend their markets there). In the meantime England committed to Brexit, lacks the same imperative and puts in place food standards etc less stringent than those in Scotland (for instance to facilitate the fabled trade deal with the US). As we know from the Trans legislation we cannot have different rules in different parts of the UK as this would be confusing. Perhaps it would be better if they were at least consistent. But in this case, how much does it matter, as the Internal Market offers the solution of “mutual recognition” – ie that if English food is sold in Scotland to standards less than our own, the Act requires us to respect those standards and thus Scotland can do precisely nothing.

But is this not a pretty perverted view of devolution? Was devolution not intended to allow the devolved nations to “do their own thing” with devolved powers? Well consider the following response from Lord Offord in reply to a question from Baron Foulkes about “illegal spending” by the Scottish Government, in June this year.

Offord says: “I thank the noble Lord for his tenacity on this subject, because I have now been in post for 18 months and this is the sixth Question I have answered for the noble Lord Foulkes on pretty much the same theme. It is a good theme: what do the UK Government do when they believe that the Scottish Government stray from devolved into reserved matters? We made some progress the last time we spoke in this Chamber; the previous Deputy First Minister, John Swinney, confirmed that he had taken away the £20 million that was going to be spent on the referendum on independence. But then, last week, we had the new head of the Scottish Civil Service, JP Marks, defending the appointment of the Minister for Independence, so we have sort of gone up a ladder and down a snake.”

That is just preamble and context – the take-home follows:

“The issue here is that devolution, as devised by the noble Lord’s party, was conceived to be a construct in which the UK and Scottish Governments would work together in unity. It was not envisaged that we would have a situation in which the Scottish Government would seek every opportunity to find division and diversion away from Westminster, and therefore there are no practical levers or mechanics built into the devolution architecture for the UK Government to directly intervene in devolved matters, except through the courts. We already had the ruling in the Supreme Court. The UK Government’s position is to continue to ask the Scottish Government to focus on the real priorities of the people of Scotland and stop this obsession with independence “

The key phrase is here, “in which the UK and Scottish Governments would work together in unity”, for that, it seems to me is a misleading view of devolution, as originally conceived. Or at least, is a significant change of view of devolution. The original view of devolution was, was it not, that the devolved nations would elect their own governments, who would implement their own policies even if they differed from elsewhere?

And what is the solution? Well, to Offord’s considerable regret “there are no practical levers or mechanics built into the devolution architecture for the UK Government to directly intervene in devolved matters, except through the courts”.

In short, on the face of it, Foulkes is about no more than being critical of the Civil Service in Scotland fulfilling what might be seen as their traditional role of supporting the elected government to implement their manifesto. But this is about so much more, as Westminster gets its ducks in a row to make independence even more difficult to achieve by devices such as undermining devolution as understood, fairly shamelessly using the law to allow them to review legislation passed (sometimes with support from all parties) by Holyrood, and not least, putting Union flags on anything that doesn’t move.  

And how much money are we talking about? As Tom Gordon gleefully told us back in June, Jamie Hepburn gets an additional £32k for his work as Indy Minister. The cumulative cost of the independence papers published to date is £45,654.66. Given money being thrown about with abandon like this, the real problem is not the expenditure but that it is happening at all.

So the situation that Foulkes and his side of the debate want to move to is for Westminster to be able to carry on

1. Undermining devolution through legislation requiring coordination of  the UK as an integrated whole, totally at philosophical odds with devolution
2. advertise any and all spending by Westminster through the device of putting a wee Union flag in a prominent position
3. often spending in devolved areas and at the same time cutting the Scottish Government out.
4. Preventing expenditure on the development by government of a case for independence.

Of course one thing that seems to me to be missing is the development of an argument about the superiority of the Union, preferring an approach that focuses on undermining devolution (1 and 3) in particular – indeed redefining it, almost out of existence (“you can run your own affairs as long as you do nothing that cuts across what we do”). At the same time the work of Westminster in Scotland is emphasised (if rather crudely -2) while making more difficult the development of a rejoinder (4).

So, Foulkes’ intervention is less about the expenditure of public funds, and really should be understood as part of a strategy which will undermine devolution in the first instance by emphasising the need for UK unity in this post Brexit World, that the even the small degree of diversity allowed by devolution is no longer in the increasingly centralised UK.

But more than this, to frustrate Holyrood by preventing its decisions being put into effect. By stopping Holyrood’s decisions being implemented, public perception of the Scottish Parliament as a talking shop is encouraged, that  it is an expensive irrelevance where the the third rate and of no importance speak of their delusions. The Scotland Act allows Holyrood to be  done away with, so let’s create the conditions for this to happen. Rule Britannia!