THE Scottish parliament – remember that? It is currently in recess, not that anyone would notice. Holyrood hasn't exactly been the central focus of events in recent months as Brexit has consumed the available political bandwidth. But it looks like MSPs may be recalled from their autumn break to give their verdict on the latest Brexit Deal, if it ever happens.
Of course, Holyrood has no direct say in the legislative proceedings in Westminster, to which some might say: be thankful for small mercies. However, it cannot sit idly. Whatever happens after last night's hectic parliamentary row, Scotland needs to remind Westminster that it still exists.
If nothing else, it is clear that the country is heading for a general election. As the opinion polls stand, Boris Johnson's Conservatives look as if they are heading for a victory. The most recent poll of polls gives the Tories a solid ten point lead over Labour, and while that may not survive an election campaign, Brexit probably will.
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So, the first thing a recalled Scottish parliament has to do is make a noise. I'm not being entirely facetious: making a fuss is a lot of what a parliament is there for. Scottish voters need to know that their elected members, not just the Scottish government, are keeping up with events and keeping up the pressure.
The latest iteration of the EU Brexit deal, struck last week, has potentially disastrous economic consequences for Scotland. Under its terms, Northern Ireland would remain, effectively, in the European Single Market. This means that firms in the province would have friction-free access, not just to the 65 million consumers in the UK, but the remaining 450 million consumers in the European Union.
No one has thought of doing an impact assessment of the differential effect of the Brexit Deal on Scotland because they know the answer already. It is simply an invitation to firms to relocate.
Of course, we're told that there are special circumstances in Ireland – the Good Friday Agreement etc. There mustn't be a hard border in case continuity IRA paramilitaries start blowing things up. The peace in Northern Ireland is indeed a delicate flower. Loyalists have been seen gathering in Belfast muttering insidiously about being sold down the river by Boris Johnson putting an effective border in the Irish Sea.
But this is a peculiar message to be sending to Scotland: if you stick resolutely to peaceful and constitutional methods of achieving self-government, you will be ignored. No one is suggesting that Scots should get militant, of course. The SNP has always opposed any hint of lawbreaking (often to the frustration of its members). But the Scottish parliament need have no qualms about making the biggest noise over the issue of consent. Why should consent be required of the Northern Ireland Assembly to new economic arrangements when it is not required of the Scottish Parliament?
Consent used to be a key principle of devolution. Under the Sewel Convention which accompanied the 1998 Scotland Act, Holyrood is supposed to have the right to withhold consent to Westminster legislation that cuts across its powers. Until Brexit, this more or less held. The Scottish parliament withheld consent to the 2011 Welfare Reform Bill, for example.
But the Supreme Court effectively abolished the Sewel Convention in 2017. The Scottish parliament wanted to withhold consent to the EU Withdrawal Bill and had passed its own Continuity Bill. But Lady Hale and co-ruled that the Sewel Convention didn't really exist – it was just a form of words, has no standing in law, forget it.
So there is nothing the Scottish parliament can do legally to prevent the Brexit steamroller over-riding devolved powers. However, it will be important, nevertheless, for MSPs to go through the legislation (whatever its fate) to identify the many and various ways that Brexit could do this.
The ambitions of Tory Brexiteers to create a low wage/low regulation economy is going to have dramatic implications for Scotland. The idea of a Trump trade deal dismantling the NHS is almost certainly scare-mongering. But the creation of the UK single market has long-term implications for the constitution and Scotland's place. The regulatory powers seized by Westminster are not coming back – at least not without a fight.
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Hopefully, the parties will be able to set aside their petty differences long enough to make a clear and coherent declaration of dissent. MSPs should avoid empty rhetoric and take a forensic approach – much as the Labour Brexit spokesman, Keir Starmer, did so effectively with the Brexit Protocols on Saturday. It needs to be placed on record exactly how and where Scotland could be sidelined if this agreement survives.
However, there will be many in the wider independence movement who want MSPs to go a lot further than just making a noise. Radical nationalists, like the former SNP MP, George Kerevan, have called for the Scottish parliament to sit in continuous session during this Brexit crisis to build the case for independence.
Plan B may have been comprehensively defeated at last week's SNP conference, but there are still many activists who believe that it is not enough for the Scottish parliament to meekly await Westminster's permission for a second independence referendum. They want to turn Holyrood into a battering ram for self-government.
The opposition parties in Westminster have made clear they support a repeat referendum on Brexit, even though a repeat referendum on independence has been denied to Scotland. Many in the independence movement would like this recalled parliament to begin the process of organising the next independence referendum, irrespective of what Westminster says.
Obviously, recent events in Catalonia will have confirmed Nicola Sturgeon in her determination to reject any illegal or unlawful referendum – that is one secured without the consent of Westminster. If she tried to turn a recalled Holyrood into a constitutional convention the unionist parties would in any event simply walk out.
I can't see Nicola Sturgeon going down that road. But she should be aware that bringing MSPs back to discuss Brexit will only emphasise the Scottish parliament's current impotence. And will increase the demands in her party to stop being too deferential to Westminster and start deferring to Scotland's interests.
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