Why are the Scottish and UK governments at war? The truth behind the row involving the deposit return scheme, gender reform, EU law and highly protected marine areas
Since the turn of the year, the ferocity of the rows between the Scottish Government and their UK counterpart on constitutional issues has surged to burn with a renewed intensity.
To some, this is the continuation of a pattern. One which suits both the main parties of government with both the SNP, struggling as it recoils from the resignation of its most successful leader, and the Conservatives, desperately grasping at straws as they inexorably follow the political gravity out of Downing Street.
The thesis goes that both sides need constitutional disagreement. It ultimately sustains them, helps appeal to their respective voter bases and, in turn, pushes out those less concerned with the union or independence from the political spotlight. Making policy arguments about the constitution is their political comfort blanket.
Take Holyrood’s gender reforms, passed cross-party in December, but subject to bitter divisions internally across almost every party and across society. These plans, which make it easier for transgender people to legally change their gender, are now subject to a constitutional row.
The unprecedented use of section 35, part of the Scotland Act, by Scottish secretary Alister Jack to block the plans due to the impact of the legislation on the Equality Act has resulted in what will be a lengthy, torturous legal debate. And, ultimately, it helps neither the women concerned about the impact of so-called self-identification or transgender people wishing their lives were easier.
Holyrood’s deposit return scheme – on the face of it a simple recycling programme designed – has become a mess of spin.
The scheme involves a returnable 20p deposit on each can or bottle, and is designed to increase rates of recycling and pass the cost of this process to the producers of the product rather than the taxpayer through council-funded kerbside recycling
But both political sides are intent on blaming the other, with the Scottish Government accused of rank incompetence in its design, while the UK government is accused of over-reaching and blocking and undermining a viable scheme.
Go back further in recent history to just before the 2021 election and the cross-party agreement on the UN rights of the child Bill, designed to give more protection to children across the public sector, was subject to a painful and controversial defeat at the Supreme Court.
It was also then used by the SNP as an example of Westminster’s limits on Scotland under devolution for the Holyrood campaign, while the Conservatives pointed at yet more “gripes and grievance”, to borrow the words of their former leader Annabel Goldie.
In the short term, we could also see similar rows on issues such as the EU Retained Law Bill, on highly protected marine areas, and – quite possibly – areas such as building standards, rent controls and the National Care Service.
But why are Scots witnessing this barrage of constant constitutional outrage from their governing parties, and what has sparked this fresh intensity to burn so brightly since the turn of the year? What exactly is going on?
‘Devolution used to be respectful. This lot are the opposite’
Ask pretty much any SNP politician about their view of the United Kingdom’s strategy in Scotland and it will pretty much boil down to the idea this government, with Jack leading the way, is out to roll back years of devolution.
It is, in essence, effectively intent on destroying the very concept of devolved powers and is deliberately picking fights with the Scottish Government over issues it would have nodded through prior to Brexit.
There is no more authoritative advocate of this view than former deputy first minister, John Swinney, who spent years in Cabinet dealing with Westminster.
“The tenor, the climate of dialogue with the UK Government since [Boris] Johnson and Jack came in has deteriorated and it has become, in my view, in large respects dysfunctional,” Swinney told Scotland on Sunday. It was, he added, a “seismic shift” in inter-governmental relations.
Swinney, who stepped away from government earlier this year after the resignation of Nicola Sturgeon as first minister, is vociferous in his belief this UK government is out to destroy devolution.
He does, however, have praise for previous governments, stating that during the David Cameron years, relationships were good, with Westminster taking a “pragmatic” and “respectful approach”.
“They respected my mandate and I respected theirs,” Swinney said.
He added: “Those aren’t the people running the UK today and if you look at the conduct, it’s not just on devolution that these people are behaving in a cavalier, malicious fashion. They’re doing it on everything.”
For the former leader of the SNP and veteran of cross-government working, this is demonstrated by the fact the Scotland Act that created the devolved nation that is Scotland is, in his words, “impeccable”.
“In structural terms, in a state like the UK without a written constitution and all the rest of it, I think it’s probably about as good as you can get,” Swinney said. “But if there’s a flaw, the flaw is it relies on everybody being a reasonable, constitutionally minded type of individual who is participating in that exercise."
Right-hand man to Sturgeon and one of the key figures in modern nationalism, Swinney also said he believes the design of the UK government’s Internal Market Act has fundamentally altered how devolution works, handing all of the power to the UK government.
Swinney said he has “never” once sat around the Cabinet table and decided to make a difficult domestic issue a constitutional one to ease the pressure.
The Perthshire North MSP states, without hesitation, that his government has never been out to seek fights with the UK government. “I’ve never believed that perpetual conflict is the route to success for the SNP, I’ve believed the entire opposite of that,” he said. “And actually, I think my behaviour in government would demonstrate that that was the case.
“I’ve long argued, and this goes right back to my leadership of the SNP, that the route for the SNP to be successful was through the building of Scottish self-confidence and in the good working of the concept of Scottish self-government.
“I’ve spent 16 years of my life trying to make sure that the opportunity of government has been used to demonstrate the value of self-government and for it to work well.”
Swinney’s contempt for the Scotland secretary is obvious. Asked whether he thought the UK government was being untruthful when they claim they are defending devolution, he said: “Alister Jack sitting there saying that he is working co-operatively with the Scottish Government is a lie”. Swinney said claims Jack is defending devolution is an “absolute rubbish, complete nonsense, barefaced lie”.
For the former deputy first minister, the Scotland Office is now a “just say no machine”. “What’s worse than that is that it is just say no and be completely destructive in the process,” he said.
This is a view unsurprisingly shared by the Scottish Government post-Sturgeon, which has retained many of the same voices and strategists under Humza Yousaf that it had through the Sturgeon years.
Their argument is simply they are trying to get things done, they are not picking fights and Jack is attempting to turn the devolution clock back to pre-devolution, acting in the process like a “governor-general”.
Sources point at the anger from Wales and the Welsh Government as a demonstration of why it is unfair to blame the Scottish Government for picking fights. And they, like Swinney, point at the overreach of the Internal Market Act (IMA).
Welsh First Minister Mark Drakeford’s attack on Westminster over deposit return after meeting with Yousaf on Thursday in Edinburgh lends credence to that argument. “They [the UK] are taking a democratic layer off and retaining that power with Alister Jack,” one source said.
“[The IMA] has placed limits on the Scottish Government. That is what is was designed to do and that is what it is doing. Look at what happened here and you have a pretty systematic undermining of the devolution settlement going on.”
It is also understood that should the SNP/Green Government have wished to pick fights, they say they would not have chosen issues such as the deposit return scheme (DRS) and gender reform and that to do so deliberately would have been a gigantic risk.
Within the SNP side of Holyrood, there is only one side playing the political game and that is the UK – and the only result is a positive argument for independence.
One SNP MSP added: “Support is growing for the Scottish Parliament to have more powers. Therefore, it would be both logical and democratic for the UK government to respect the wishes of the Scottish people to gain more independence, and for UK ministers to facilitate further progress and empowerment for Scotland, rather than undermining devolution.”
The SNP’s current partners in government, the Scottish Greens, are also in agreement.
Their view is the issues around intergovernmental relations are “not complex”, adding “Jack just has a new hammer and he’s using it”.
There is confidence in the belief that issues such as DRS will not be salient come the 2026 Holyrood election and, due to having no MPs and sitting well off the pace in Westminster elections, there is nothing to lose at the next general election.
They share the view the IMA has “fundamentally altered devolution”, but said it had become clear the UK government had also become skilled at poisoning the debate around issues before wielding their new weapon. In effect, legitimising the attack before taking it on.
Pride, rather than shame, is also taken when the party looks at opposition to the policies they are attempting to pass through the party.
"One bit they [the Tories] do get right is that we are ‘ideological zealots’ and we are not going to be put off by that [accusation],” one Green source said.
"Tories are playing a deeply cynical game, we are playing a deeply ideological game. They are about staying in power and we are about making change
“We are willing to make change even if it ruined our party. Fortunately, the polls show that the opposite is happening. The things we're achieving are making us even more popular."
There is a recognition across government, however, that it does need to improve how it presents policies to the electorate, with admissions that both the DRS and the coming highly protected marine areas are ill-defined by government communications.
Both the SNP and the Greens, however, are united by one belief – the UK government and the Conservatives believe that undermining the institution of Holyrood and the devolution settlement is intended to undermine the SNP and, by virtue of that, undermine any case for Scottish independence.
‘We are defending devolution from those who want to destroy it’
Jack, the soon-to-be-departing Scotland secretary of nearly four years, is the man the SNP most commonly point to as being the architect of what the believe to be an antagonistic approach to Scotland and devolution.
The MP for Dumfries and Galloway, who is stepping away from frontline politics at the next general election, has in recent months developed a taste for the bombastic defence of the union, most obviously demonstrated at the most recent Scottish affairs committee meeting.
There, Jack accused the Scottish Government of getting up each day to “go to work to destroy the United Kingdom”. He added: “My job is to defend the constitution and defend devolution and I think the Scottish Government want to break up the United Kingdom, which would bring devolution to the end.
“It's an honest position. They want to destroy the United Kingdom."
This is a characterisation unsurprisingly rejected by most nationalist MSPs, such as the Scottish Green’s Maggie Chapman telling a parliamentary debate on protecting devolution that Jack and his colleagues wished to “burn the place down on their way out”.
UK government sources also flatly reject the suggestion they are doing anything but defending the existing devolution settlement and battling an SNP that is increasingly desperate for constitutional grievance.
"If you look at the cause of the friction, it is caused by the Scottish Government failing to accept the natural boundaries of devolution”, a UK Government source told The Scotsman.
"The Secretary of State’s view is that he supports devolution and it strikes a good balance, and it is his job to uphold and defend that devolution settlement.”
Pointing at the UNCRC Bill, struck down by the Supreme Court just prior to the 2021 Holyrood election and used throughout the campaign by the SNP as an example of Westminster intrusion into Scottish politics, the UK government claims there is significant precedent for the idea the SNP are picking fights.
That particular row was a “shameful episode”, with gender reform being viewed as a mistake on the Scottish Government’s part due to a failure to consider the impact on equality law – making it a justified intervention.
The latest row, over DRS, is another episode forced by SNP incompetence, according to UK government officials, and their misplaced hope their late request for an exemption – though the idea of a formal request process existing is rejected as “fantasy” by the Scottish Government – would be a fait accompli and force the hand of Jack.
In any case, the UK government states the facts demonstrate "strong evidence that they are trying to provoke rows”.
The source added: “Generating a grievance is something they want to do to shore up support of their base and to create an impression that there are issues.”
There is also a fierce defence of the IMA, which some argue effectively codified the existence of a UK internal market as was necessary post-devolution.
Rather than being a vehicle for imposing policies on Scotland, it instead provides a degree of regulatory uniformity and forms a fundamental part of the devolution settlement.
Overall, however, there is deep distrust in how the SNP and Greens operate in Holyrood and, even, to an extent the Labour administration in Wales.
For the UK government, the belief is that nationalists view devolution solely as a vehicle for advancing the cause of independence and for the powers that make up Holyrood to be used in that context.
The position flows that it must be the SNP that are undermining devolution and that it is “complete nonsense” – a view held by multiple sources spoken to for this piece – the UK government is seeking to undermine devolution.
Jack, for one, is understood to have disagreed with his former government colleague, Lord Frost, who called on the UK government to begin rolling back powers from Holyrood.
A UK Government spokesperson said it was committed to “working constructively” with the Scottish Government, adding that is what “families and businesses in Scotland expect” and pointed to the success of city and growth deals and freeports.
One Scottish Conservative source in Holyrood said, however, the Scotland Office did not appear to have a decided strategy, instead taking issues on a case-by-case basis and doing, often, what businesses and other stakeholders are requesting.
It is not, as some in the SNP claim, Jack flexing his muscular unionist approach as he heads towards the exit door, but instead a happenstance of timing that so many constitutional rows have been sparked in recent months.
In any case, it is not a concerted Tory effort to kill off devolution as characterised by the SNP, they argue.
There is also a view within the Scottish Conservatives the hated-by-nationalists IMA was an attempt to codify the UK internal market and make into legislation the constraints everyone was already working to.
This sits alongside the belief the Scottish Government civil service, which advises ministers, has squarely failed to react to the post-Brexit world, one which has resulted in a new environment for the Scottish Government to operate in.
Instead of reflexively turning every dispute into a constitutional matter, ministers could be solving the issues and delivering what they promised to voters, far better than never-ending constitutional rows.
However, one source said Labour and the architects of devolution should also answer for the fact the devolution settlement was developed in haste and for fair weather, and with a fair degree of assumption that Labour would likely be in power.
This has led to a lack of formal dispute resolution processes and ways to ensure reasonable cross-government working; a criticism hard to deny after the last 13 years of almost constant disputes.
Scottish Conservative constitution spokesperson Donald Cameron said the two governments must learn to work together.
He said: “People across Scotland want to see both of their governments working together to tackle the real priorities facing the country. We have seen how that delivers benefits for communities, such as the announcement of two new freeports and numerous city and growth deals.
“If the SNP-Green Government is claiming that relations are as bad as they have ever been, then they should reflect on recent legislation that they have ploughed ahead with despite overwhelming opposition from the public.
“It is time for them to stop their anti-UK rhetoric and work constructively to improve the lives of people in Scotland.”
There are some within the Scottish Conservatives, however, who view the approach of the UK government and of their own party as counter-productive.
They point at Scottish Labour’s ability to position themselves as the “grown-ups in the room”, a party that made devolution work in the early years under Donald Dewar and his successors and who did not have constant constitutional arguments.
Douglas Ross’s position as both an MP in Westminster and leader of the Scottish Tories is also viewed as potentially problematic, forcing the party to back the UK government approach even when it is thought a different, unique Scottish approach would be better.
One MSP source said the UK government was “complicit” in playing their part in the constant constitutional rows, but admitted it was this approach that had won the party unprecedented success in both 2016 and 2021.
However, there is a desire within the party to abandon this approach, to instead allow the SNP to make their mistakes without helping them towards their constitutional comfort blanket. For once, the Conservatives could take the place of Labour as the “grown-ups in the room” and avoid engaging in constitutional dogfights.
But this is the comfort zone not just for the party, but for its leader and its Scotland secretary, and the UK government’s lack of a joined-up strategy in Scotland is starting to show.
‘This is two parties talking past each other’
Seeking objective viewpoints on the issue of constitutional rows and their beginnings is close to impossible, but some academics believe there are deeper forces at play than simply the Scottish Government or UK government picking a fight.
Aileen McHarg, professor of public law and human rights at Durham University and an expert in this area, said she does not believe it is the Scottish Government “trying to provoke fights”.
"In general, I think they also have more to lose than gain from losing legal battles, although sometimes they don't have much choice, but to litigate or defend themselves in court.”, she said.
“My experience suggests that the Scottish Government is very conscious of competence limits, and tries very hard not to breach them, whilst nevertheless sometimes being quite ambitious in what it is trying to do, for example with the UNCRC Bill.”
Professor McHarg said reports on inter-governmental relations suggest ongoing co-operation, but that much is based on UK government policies such as freeports, rather than helping move on devolved policies.
She said: “I think there's no doubt that the UK government has more opportunity to supervise devolved law-making than it used to have and is much more willing to do so, just as it is much more willing to take powers in devolved areas than it used to – also a source of friction.”
Some argue this is instead two parties talking past each other due to fundamentally differing views on what devolution is and what they are defending.
This results in two governments taking their understanding of devolution – be it the expression of the will of the Scottish people as in the SNP case or as a legislature based on local empowerment but limited by the very structure of devolution in the Conservative case – from different perspectives and with different ends in mind, resulting in a lack of incentive to make it work.
Alongside this also sits the post-Brexit constitutional arrangement, which includes deeply controversial legislation such as the IMA and differing policy goals in regards to Europe.
These two separate frameworks are then smashed together, resulting in incompatible views, with incompatible settlements creating the friction that exists today and sparks these debates and rows.
This is all done in good faith by each side who are both driven by the belief their version of devolution must prevail. The question as to which one does is, like the question of devolution and the Scotland’s constitution future, is yet to be settled.
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