A Rapist’s Theory of Consent

Tweet Follow @RPJblog
By Jason Michael

Scotland will have no power and no right to withhold consent until it is a sovereign and independent country.

Westminster has addressed Scotland’s power grab concerns over the repatriation of powers in the publication of the draft amendments to the European Union Withdrawal Bill. In a typically British cack-handed attempt to assuage the concerns of the devolved parliaments this draft proposes to return all powers to London for up to seven years. Naturally the proposed amendment to the Scotland Act gives the Scottish parliament a say in what will happen; it can either give its consent or give its consent. Yes, you read that right: Holyrood’s consent can be given, according to the draft, by giving its consent, remaining silent, or by withholding its consent.

Even a straight No from the Scottish parliament will be taken as consent by London, allowing the Westminster government to take back all of the powers regardless of the positions of the devolved national governments. Not only will Scotland be taken from the EU against its will, the very will of Scotland will be ignored by the British government in whatever it – and it alone – decides in relation to Brexit. This is no mere democratic deficit. This is the imposition of London’s will on Scotland. This is a power grab, and we have been told there is nothing we can do about it.

When the question of the 111 returning powers first became an issue the British government denied a power grab and the BBC leapt into action, portraying the Scottish government and its Brexit Minister, Michael Russell, in particular as fantasists. The British negotiators said all the while that Scotland’s consent would be sought and their sincere hope was for consensus. It soon transpired, however, that the power grab was real, and today we have again been reminded what the UK government means by “negotiation.” Britain does not do sincerity.

Nicola Sturgeon is right in saying that this is only a draft and that it can still be fixed, but it is not easy to share her optimism. Whether we like it or not, legally speaking Westminster has the power to impose its will on Scotland – that is what the “union of equals” means. In the Commons both the government and the opposition are unionist parties, rendering the SNP – which holds the majority of the Scottish seats – powerless. Once again England’s will will be imposed on Scotland.

Edinburgh QC Jonathan Mitchell aptly described this as “a rapist’s theory of consent,” and he’s not wrong. How else can such a situation be described? A decision that will have far-reaching affects across Scotland and the Scottish economy is being made for the benefit of another country and its economy outside of Scotland – in what amounts to the parliament of the beneficiary. That Scotland’s withdrawal of consent is of no consequence is an act of political and legislative rapine, but this has been a central feature of the union since its very beginning. Why this should come as a surprise to anyone in Scotland is a mystery.

All of this cuts right to the heart of the problem of the union and the nature of devolution. Devolution is not sovereignty, and sovereignty is the only political condition that can save a nation from another imposing its will on it. Holyrood is not a sovereign parliament. It is a devolved parliament, meaning that its “power” is merely that part of Westminster’s power it has been permitted by Westminster to exercise. That “power” can be rescinded at any moment.

Real power in Britain is in London, and this is a parliament established on a medieval conception of autocratic power which is completely foreign to Scotland. While in Scotland sovereignty is in the hands of the people – at least in theory, in England all power – absolute power – is in the Crown. The legal concept of the Crown in Parliament means that the absolute power of the Crown in exercised through “her majesty’s” parliament – Westminster. As long as Scotland is in a political union with England and England’s parliament is the supreme parliament of the union then that parliament has absolute power over Scotland.

Scotland’s popular sovereignty has no legal reality in this union, and our parliament has no teeth. A national parliament without sovereignty is no parliament at all, and this Brexit powers power grab has only reminded us of this sorry fact. It reminds us that our only way forward as a nation is independence.

Scotland’s popular sovereignty has no legal reality in this union, and our parliament has no teeth.

Without a referendum and a decision to end the union before the completion of the Brexit talks in Brussels we can be sure this power grab will happen. The Scottish parliament will be made weaker as a result, our economy will be negatively affected, and Westminster will have its way. This is always the way it is because the union is the legal arrangement by which England has its way. Something that is not being said loudly enough here is that these three things – power, our consent, and another referendum – are all facets of the same problem: our lack of independence.

Scotland will never have power and our consent will only ever mean what Westminster says it means until we are an independent country. Rather than talking about fighting this within the union – where Scotland, by design, can never win – Nicola Sturgeon should be using this most recent slap in the face as a last straw on which to set the ball rolling on another referendum. The time has come.

---

Scottish parliament: We have been treated with contempt!

---

Follow @Jeggit