Legislative Consent

– in the Scottish Parliament on 18th February 2021.

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Photo of Patrick Harvie Patrick Harvie Green

6. To ask the Scottish Government what action it can take to prevent legislation in devolved areas being passed that is contrary to a resolution on a legislative consent motion by the Scottish Parliament. (S5O-05038)

Photo of Michael Russell Michael Russell Scottish National Party

The only answer to that question is to say that Scotland must become independent, because an independent Parliament would not be subject to such restrictions.

We will of course always try to explore every option under devolution but, in practice, devolution is based on the doctrine of the unlimited sovereignty of Westminster, which means that it claims the right to legislate on whatever it wants, including devolved areas and, if it so wishes, the abolition of this Parliament. The Supreme Court has confirmed that the statutory protection of the Sewel convention in the Scotland Act 2016 is toothless. That undermines a key recommendation of the Smith commission, and provides in the end no protection from a Westminster Government that is determined, as the current United Kingdom Government is, to flout constitutional norms.

Recent events, from the European Union (Withdrawal) Act 2018 to the outrage that is the United Kingdom Internal Market Act 2020, have demonstrated that the UK Government is not only able but willing to ignore the views of this Parliament and to constrain and reduce our power unilaterally and without consent. The only answer to that is independence.

Photo of Patrick Harvie Patrick Harvie Green

Since the beginning of devolution, the courts have had the ability to strike down legislation from the Scottish Parliament if it strays beyond legislative competence, and I suspect that voters who endorsed that devolution settlement never imagined that a UK Government would be so willing to routinely pass major legislation in devolved areas.

Does the cabinet secretary agree that legislation that has been passed by the UK Parliament in that way—against the consent decisions of the Scottish Parliament—is fundamentally illegitimate, and does he agree that anyone who seeks to suggest that a solution other than independence can exist must, as a minimum, agree that courts should have the power to strike down legislation of the UK Parliament that is passed in devolved areas without the consent of the devolved legislature?

Photo of Michael Russell Michael Russell Scottish National Party

Not only do I agree with the member; I find his contention utterly unremarkable. Anybody who believes in democracy would regard it to be true. It is therefore extraordinary that there is a body of people elected to the Scottish Parliament who do not accept that principle. I find that astonishing.

The Deputy Presiding Officer:

Thank you. That concludes questions on the constitution, Europe and external affairs. We are a little ahead of time, but the next item is follow-on business and so I will hand over to my colleague for that.