This week, the Welsh parliament announced that it ‘condemns the Israeli Government’s indiscriminate attacks on Gaza’ and ‘calls on the international community to…bring pressure to bear on the Israeli Government to end the siege of Gaza which contravenes international law and the basic human rights of Palestinian civilians’. Those were the terms of a motion laid by Plaid Cymru and passed by Members of the Senedd by 24 to 19, with 13 abstentions. The motion was not entirely without merit: it condemned Hamas’s attacks on Israeli civilians and called for the hostages to be released. But this story nonetheless offers a signal from the devolution crisis that no one in Downing Street or Whitehall wants to acknowledge.
Whether you agree with the terms of the motion or not is irrelevant. The more pressing question is why the Welsh parliament is debating motions on reserved matters such as foreign affairs. True, this was a foreign affairs debate, not foreign affairs legislation, which would be struck down by the courts if it was ever attempted. But the question remains: why are MSs laying motions on subjects only Parliament can legislate on and about which only the UK Government can make policy?
At Westminster, there is only complacency
There is an indulgent view of this sort of thing, heard inside both the Labour and Tory parties, which says that no harm is done when devolved legislatures merely debate reserved issues and don’t try to go any further. After all, the Scottish parliament debated an SNP motion on the eve of the Iraq War that said ‘no case for military action against Iraq has been proven’, that ‘no United Kingdom forces should take part in any military action without a United Nations mandate’, and that going to war absent such a mandate ‘would be contrary to international law’. Holyrood voted down the motion but, even if it had passed, it wouldn’t have prevented the UK Government from proceeding as it did.
This perspective ignores a rather important aspect of foreign affairs: the foreign part. Do votes such as these promote clarity or confusion internationally about the UK’s position on the issue in question? Do they make it easier or harder for the Prime Minister to present his policy choices as those of the United Kingdom as a whole? Do they make the UK look more united or divided? We have an answer in the case of the Welsh vote on Gaza.
Following the vote, the Palestinian Mission to London, which represents the Palestinian Authority in dealings with the UK Government, released a statement welcoming the Senedd’s decision. The statement went on to quote comments made by MSs during the debate (on preferring a political to a military solution, on deaths of children in Gaza, on what the UK should do) and indicate its agreement with each of them. When a foreign government is endorsing a vote on foreign policy by a devolved UK parliament, even if it has no legislative force, it is hard to argue that said parliament is not becoming involved in foreign policy.
The risk that this could, in the right circumstances, harm the UK’s international relations is not negligible, particularly in regard to a conflict as sensitive as that between Israel and the Palestinians. Yet at Westminster there is only complacency.
Another signal, this one less dramatic, from the devolution crisis. In the last ten days, the Scottish government has posted nine tweets from its corporate X/Twitter accounts promoting Scottish independence. This is not including official ministerial accounts. The tweets all promote the latest Scottish government white paper, ‘Building a New Scotland: migration to Scotland after independence’. This paper is the sixth in the New Scotland series and comes despite the constitution being reserved, the UK Government opposing another independence referendum, and the Supreme Court having ruled that a Bill to hold a unilateral referendum would be outwith Holyrood’s powers. Why, then, is the Scottish government still producing pro-independence propaganda and why are civil servants promoting it on social media?
I have been arguing for a Royal Commission on devolution to coincide with the 25th anniversary of the opening of the Scottish parliament and what was at the time the Welsh assembly. The remit would be to examine the implementation of devolution, identify its flaws and successes, and recommend reforms to improve devolved institutions and make sure they work in a way that enhances rather than undermines the political and constitutional unity of the UK.
A Royal Commission could consider and recommend a number of remedies to devolved bodies interfering in reserved matters like foreign affairs and independence. A comprehensive solution would be to amend the Wales and Scotland Acts to the effect: ‘Parliamentary and government resources may not be expended in relation to reserved matters’. A schedule could specify that ‘resources’ referred to any financial outlay, expenses, facilities, equipment, staff, research or communications. It could also specify reserved topics such as foreign affairs, the constitution, war, national defence, the monarchy, etc.
A more surgical approach might be to legislate an amendment to the standing orders of Holyrood and the Senedd: ‘Parliamentary business may relate to reserved matters only in so far as they impact the devolved responsibilities of the parliament or the powers of ministers or the Law Officers. Questions, answers and debates about the substance of reserved matters are out of order.’ This could be accompanied by amending the civil service codes for Scotland and Wales to forbid civil servants working for the Scottish and Welsh governments from undertaking any activities relating to reserved matters.
These are not merely theoretical questions, and nor should they concern only Conservatives. If Labour forms the next government, it will likely do so thanks to gains made at the expense of the Scottish Nationalists. A wounded SNP, with two years left before the next Holyrood elections, could be expected to use the Scottish government and the Scottish parliament to frustrate the agenda and policies of a UK Labour government. Where it could not frustrate, it would have no compunction in surfacing issues, such as the Palestinian conflict or immigration and asylum, that are particularly sensitive for Labour. A Royal Commission is in the best interests of constitutional good government but it would also be politically prudent.
Comments