First published by Common Weal
I’m going to share a story with you. I do so with slight hesitation – my source for this story is reliable and the original source is reliable but I don’t know if there was any ‘Chinese Whispers’ between the two (and now me). But as it illustrates very neatly my point this week I will retell it – apply a pinch of salt as you see fit.
After Brexit and the elevation of Theresa May to Prime Minister she arranged a first meeting with Nicola Sturgeon. Her side had a strategy; the civil service had prepared a full package of concessions to Scotland which were sitting in a folder in front of May. They wanted to try and get an orderly Brexit through parliament and were ready to make serious concessions in turn for some cooperation from Scotland and some concessions in return.
On the way to the meeting Sturgeon was confrontational and outspoken about her contempt for the subject of the meeting. Outside the meeting she did it again. And then in the meeting she opened with another diatribe that could be summarised as ‘no retreat, no surrender’. May’s civil servant quietly reached over and slid the folder off the table. It was never opened.
You may interpret this as ‘sticking to principles’ or ‘the right thing to do’ if you want, but good government requires that you must work even with those you very strongly disagree with. You don’t get bonus points for grandstanding in private, but you do get penalty points if you approach a meeting in a manner that prevents you from learning what is on the table.
I raise this issue this week because the dysfunctional relationship between Holyrood and Westminster is becoming a serious problem – and the problem is only experienced by Scotland. In the last few weeks two should-be landmark pieces of legislation fell apart because of this failed relationship and it isn’t having a negative effect on England.
The damage in Scotland however is substantial. Important policy areas are being devalued as a result of incompetent implementation. This really, really matters.
In the case of the Gender Recognition Reform legislation it was pretty clearly signalled in advance that this was likely to fall foul of reserved equalities powers. Sadly the Scottish Government treated this as it does most critical voices – it didn’t trying to examine the point, it tried to suppress the criticism and brazen on anyway.
The result is that there is now absolutely no reform of gender recognition for trans people and little prospect of the process being rapidly restarted. You will have your own views on whether this is a good or bad thing, but since the Scottish Government insisted this legislation is essential, it is very clearly extremely bad from their perspective.
Hot on the heels of that we get the unmitigated disaster of the Deposit Return Scheme. This is, for me, a new low in government, up there with Kevin Stewart’s decision to tell everyone they had to get their house rewired for new smoke detectors. In three months. During a pandemic.
In politics you need to do two things at the same time – you need to fight opponents strenuously in public, but then you need to find a working relationship in private
I spent yesterday talking to a former senior civil servant about this sorry affair. I can understand how Lorna Slater thought that it was a good idea to impose very significant costs on businesses to comply with a scheme she knew was illegal without UK consent yet hadn’t asked for formal consent. I can understand that because she appears to be genuinely incompetent.
What I cannot understand is why the civil service didn’t stop her. Why on earth was no-one saying ‘if you impose these costs and Westminster refuses a derogation from the Single Market Act you are liable to legal actions from those on whom you’ve imposed the costs’?
I can only conclude that there has been some breakdown in the culture of the civil service in Scotland and I can only assume that that has been politically led. The only thing that makes sense is that the Scottish Government has become petulant and lacking in seriousness in its dealings with Westminster.
Now that might seem odd coming from me. I’ve been quite open that challenging Westminster and pushing towards the boundaries of devolution is part of the political strategy I personally would pursue. But I want to really emphasise the subtlety of how government gets done.
Because in politics you need to do two things at the same time. You need to fight opponents strenuously in public, but then you need to find a working relationship in private. That’s how things get done. You won’t get far in government if you don’t learn to work with your ‘enemy’.
I was a political lobbyist for a long time. Sucking it up and resetting is a fundamental part of the process. You run a media strategy to put pressure on a politician. The politician says shitty things about you in public. You then win or lose – but either way you’re then going to have to work again with the politician.
You absolutely can’t avoid this. Government (and parliament) is a system with many moving parts and they touch each other. You can’t get anything done if you don’t accept that. I can remember in a past life having then-junior Tory MSP David Mundell make an utterly fatuous bad-faith complaint about me in the media.
(I’d given evidence to a Committee and told the media afterwards we were disappointed by Mundell’s response and he claimed it was inappropriate for a witness to be critical of a Committee member, which is just silly – but it got him through the news cycle.)
Two weeks later I had to go and ask him for his support over a different matter. You smile, forget about it, shake hands with a brisk ‘hi David, how are you?’, he gets to have a dig about your comment (because you’re asking him for something), you smile more, suck it up and move on. (I got his support just fine.)
Losing court cases isn’t proving that the UK is a malign force, it is proving that the Scottish Government can’t write successful, legally-competent legislation
That’s the game. That’s how it’s played. But the Scottish Government does not seem to have been playing the game. They seem to operate like a teenager writing nasty comments about a classmate on the toilet walls. There seemed to be an assumption that there was no risk because the Scottish Government’s base in the SNP love a fight with Westminster.
But the base isn’t loving the disintegration of government agenda after government agenda. The whole concept of the circular economy is being jeopardised. There is currently no sensible path to reforming gender recognition. People are paying a price for this.
Independence supporters have heard all of this from a single perspective – that the Scottish Government were the grown-ups in the room and the UK Government is a constant malign presence trying to roll-back devolution. The latter position is a little exaggerated but yes, there’s undoubtedly truth in it. But that does not make the former position correct.
If the UK Government isn’t playing ball on reasonable matters you need to surface that before you waste everyone’s time and money ploughing on regardless. And while many of you will not want to hear this, the UK Government may not be playing ball here but its position (on both issues) is not unreasonable.
The implications of cross-border trade in relation to the DRS has not even nearly been resolved. You may not like the UK Single Market laws but they are laws and the DRS rides roughshod over them. The UK may not be correct to say ‘no, nay, never’, but it is correct to say ‘you can’t just go ahead with this like it’s not an issue’.
It is almost certainly the case that the GRR/Section 35 issue will be lost in Judicial Review if a new SNP leader is foolhardy enough to pursue one. Like it or not but the UK equalities legislation and the GRR clash heads by most readings of the legislation.
The Scottish Government really does have a bad habit of responding to everything with grandstanding. Every cross-border setback so far has resulted in the Scottish Government pursuing legal action and the result of every legal action has been for the Scottish Government to lose.
It isn’t proving that the UK is a malign force, it is proving that the Scottish Government can’t write successful, legally-competent legislation. They’re actively proving that the UK Government is in the right.
Whomever is the new First Minister should take stock of this. If that person is incapable of creating a more effective working relationship with Westminster, this will keep happening.