Scotland’s problem isn’t democracy failing

by | 5 Jun 2023

Two sides in a constitutional conflict over Scottish legislation want you to believe the other is 'wrong' and that they're 'right'. But the problem isn't a bad faith actor, it's the nature of the democracy we have.

A lot of political conversation just now seems totally confused, and the confusion is the result of the oppositional relationship between Holyrood and Westminster. Policies are falling apart because of lack of cooperation and both sides are desperate for you to believe their interpretation of the reason why.

One side is pretending it is protecting the union from bad policy, the other that its the result of a nefarious government which is trying to undo devolution. One side is destroying legislation it doesn’t have to because bad drafting has opened up the possibility. The other side is trying to persuade you that ‘democracy’ and ‘it getting its own way all the time’ are the same thing.

Both sides are basically spinning madly about two Section 35 Order (gender reform, deposit return scheme) and two Supreme Court visits (human rights for children and right for Holyrood to hold an independence referendum). And just for good measure, Gordon Brown is off in the wings spinning wildly that only electing Labour would create the necessary reform to solve this, hampered somewhat by his party leader’s refusal to make the necessary reforms.

This all basically boils down to one set of questions – should an elected government be able to act without restriction or hinderance and, if not, when and how should it be constrained? Since the answer to the former of these two questions is a very obvious ‘no’, the position that anything the Scottish Parliament legislates for must be enacted in all circumstances can be dismissed.

After all, note how many of the people, who think the current conflict over gender reform or a recycling scheme is an unconstitutional abomination, were cheering when the Supreme Court prevented Boris Johnson from proroguing parliament over Brexit. If limiting the ability of governments to act is wrong, why doesn’t that apply to Westminster?

This is the thing; every single developed democracy has legally-enshrined limitations on what it can do. That is one of the core functions of a constitution. It limits absolute power, requires certain norms to be observed (whether any given leader wants to observe them or not) and places checks and balances in the way of those with power.

So it should; government can change the law but it cannot be above the law. And there may be some parts of a law you don’t let them change, or at least not easily. For example you can enshrine basic rules around human rights in a constitution and once that is done, someone can’t just legalise murder, or detention without trial.

There are reasons other than basic protections for the public from a government that we get these complications. Think about the relationship between Holyrood and local authorities. Local authorities are elected with a mandate over local issues like planning, but they can be overruled by the Scottish Government, even if the power is devolved to the local authority.

In fact last year two in five planning decisions made by local authorities based on local opinion and assessment of local needs which were appealed were overturned by the Scottish Government. There can be very good reasons for this, like a clash between local interests and the national interest.

Trying to screw up another democratic body you don’t like or think you should be running yourself is baked into democracy

But it shows that the Scottish Government’s own attitude to the democratic mandate of local authorities is pretty cavalier. Overruling local government and imposing unpopular positions which do not have local support is routine in Scotland.

So when someone tells me that a Section 35 Order is undemocratic my mind boggles – I mean, it is literally written into the rules of our democracy, forms an unambiguous part of our constitution and was supported by the SNP MPs, who voted for the 1998 Scotland Act which created it.

There are clear limitations on when it can be used, and that’s what the Scottish Government’s legal action on gender reform is about – was this step proportionate to the cross-border impact the legislation would have? What is not being tested legally is whether Section 35 Orders generally are constitutional, because they are.

Forget everyone telling you this is all an abhorrent failure by the other side, this is just politics. It is no more a legal requirement for the UK Government to facilitate an easy life for the Scottish Government than it is the other way round. The Scottish Government can hardly claim never to have sought to thwart the Tory government. I mean, they drove around in a bus that said ‘Stop Brexit’ which a majority of the population of the UK had voted for.

And don’t kid on this is just because of ideological opposition. I remain convinced to this day that the demise of Henry McLeish as First Minister was the result of him trying to pass the free care for the elderly legislation in the face of furious opposition by then-UK Chancellor Gordon Brown. Shortly afterwards leaks came out of Fife Labour (at that time Brown’s area of total dominion) which finished off McLeish. I don’t think it was a coincidence.

The SNP does it to local authorities. Tories do it to the SNP. Labour does it to its own. Parliamentarians do it to Boris Johnson. Trying to screw up another democratic body you don’t like, or think you should be running yourself, is baked into democracy. I mean, does anyone remember Strathclyde Region during the Thatcher years? It was part-local authority, part-saboteur.

And that’s all fine. Such is the complicated resolution of differing opinions in a democracy. If everyone stays happy with the conflict that results from their choices, that’s democracy. Westminster wants to screw Holyrood and a majority of its voters are fine with that. The SNP wants to screw local democracy in Scotland and its voters seem content to let it. That’s how it works.

So, let’s get our head straight about what we’re arguing over. It’s not whether democracy is ‘working or not’, it’s whether we like the way it is working. For Scotland as a whole, are we happy to remain in a political union which elects a parliament in London which is now generally at odds with a subordinate parliament in Edinburgh?

Devolving more powers won’t solve that – all that would do is redraw the lines of conflict, and while it could reduce the overall number of conflicts, it could increase them too. Gordon Brown’s ‘it’ll be fine so long as we only ever elect Labour governments absolutely everywhere’ is so silly it is not worth dwelling on. But given the warring dysfunction between him and Blair (who never stopped trying to screw each other over when in power) it really doesn’t stack up at all.

Running to court every two minutes isn’t going to fix this, because you don’t resolve a state of general conflict by adjudicating one way or another on individual instances of conflict. Let’s just be clear, the Scottish Government has lost every case heard against it in front of the Supreme Court. Has that decreased the rate of conflict?

You will never succeed in resolving conflict between two ideologically-opposed governments and as best as I can see Edinburgh and London are not going to be ideologically-aligned in any foreseeable future

Because, if the steady progress of legislation was the Scottish Government’s goal, would be getting its act together and negotiating things in advance so its legislation was inarguably legal. And if its aim is to ‘pick strategic fights’ then it is clearly picking the wrong ones and doing it badly. It keeps losing.

So if you’re one of the ‘the SNP needs to prove it can run a government well before we get to independence’, you have to understand that that means ‘but only as much as London allows’. The Deposit Return Scheme and gender reform legislation would never have been introduced as Bills, certainly not in the form they exist. We’d be back to Jack McConnell times – do less, better.

But that was what the Scottish public rebelled against in 2007. A more assertive Scottish Government pushing beyond ‘tame pet’ status was very popular and led to probably the only single-party political majority we’ll ever see in the Scottish Parliament. So, unionists who hope that reverting to ‘a Holyrood which knows its place’ will be good for them are probably wrong too.

Meanwhile independence supporters who scream about this being a democratic outrage which is undermining devolution are wrong. This is just democracy operating in a way they don’t like. It can be used as a strong argument in favour of independence, but only if the legislation over which you are fighting is popular and so long as you don’t keep losing court cases, which show that it’s you on the wrong side of the law, not them.

Unionists, gradualists and fundamentalists all have a serious problem. They seem swept up in the modern idea that precisely, exactly what you want, without deviations or variations, is the only truly legitimate outcome. Apply that to democracy and you’re never going to see a legitimate outcome.

My position is clear on this. Westminster is bad for Scotland because it doesn’t really care about Scotland, and so we will always be an afterthought sacrificed to the whims of the City of London and the Daily Mail. The Scottish Government seems incapable of producing legislation or running services in a competent way but can probably keep doing it so long as we are stuck in a constitutional logjam.

Meanwhile Scotland is a fundamentally centralised country which needs some serious work done on its own democracy. None of this is the failure of the democracy we have, it’s me being clear that I think we need to choose a different democracy. We need Scottish independence in order to escape Westminster, get rid of the failing Scottish Government and restore local democracy.

You will never successfully in resolve conflict between two ideologically-opposed governments and, as far as I can see, Edinburgh and London are not going to be ideologically-aligned in any foreseeable future. The problem isn’t the a failure in the structure of democracy, it’s being in a nation state which makes democratic choices in Scotland and in England which are irreconcilable.

The only realistic options are independence with a properly written constitution to ensure we don’t get right back into the same centralised problems we have now, or ongoing trench warfare until half the public stops supporting independence.

And no, gradualists and unionists, that not a fair choice; something else we must all be clear about is that democracy isn’t fair but rather a compromise between humans, and we tend towards idiocy. It’s just the reality. The sooner people absorb that the better.

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