Kenny MacAskill MP: How we can break the constitutional logjam in Scotland before a referendum

Kenny MacAskill argues that there are changes that can be made to the constitutional settlement without a referendum.

Kenny MacAskill is the Alba Party MP for East Lothian

With the UK Government rejecting a second Independence Referendum yet again and, in any event, holding one being deferred by the Scottish Government until coronavirus recovery, it’s off the immediate political agenda. Many will continue to argue for one, but the likelihood is it’s not happening anytime soon.

However, that doesn’t mean that changes to the constitutional settlement shouldn’t be made. Alterations that neither imperil the union nor impede independence but break the constitutional logjam and meaningless charade of Nicola Sturgeons demands followed by Boris Johnsons refusals. Changes which are essential for the governance of Scotland but also offer opportunities for progressive policies to be tried benefiting the rest of the UK.   

An immediate issue requiring a change to the existing settlement is the position of Lord Advocate. In Scotland alone, neither across any other legal jurisdiction in the UK nor indeed in the western world, does a post holder act as both senior government legal advisor and head of the Prosecution Service. It’s an anachronism tinkered with to minimise the risk of compromise but where Chinese Walls and recusals from certain prosecutions are entirely inadequate.

Recent prosecutions and actions have called it into question and a coming change of office holders is insufficient to dispel growing concern. But as the post is designed within the Scotland Act 1998 establishing the Scottish Parliament, legislative change at Westminster is what is required.

There are constitutional complexities involved moving to the more orthodox role of an Attorney General and Chief Prosecutor, or whatever historic Scottish titles are retained, but they’re far from insurmountable.

Similarly, providing MSPs with absolute rather than qualified privilege is something that needs to be looked at. It’s not about parity with MPs as such, but the ability of elected representatives to properly challenge the executive and indeed power is vital.    

There’s no good reason why these changes cannot be agreed to in order to improve Scotland’s governance. Equally it could be an opportunity for other changes, some minor, others more significant. Some of which might be viewed as ‘no-brainers’ but others more controversial. Surely though they can all be debated and progress on some, if not all, can be made.

The current position on drink driving powers is a case in point as lawyers would say for the no-brainer argument. Powers to reduce though actually also to increase the drink drive level were devolved to the Scottish Parliament a few years back. That has seen a reduction in the blood alcohol limit, a change that’s been widely welcomed. Many would like to lower it still further.

But a further reduction where a mandatory year’s ban would be imposed would be seen as harsh in the court of public opinion. What’s required is for a lower limit to be matched by the ability to impose a lesser penalty for that level. That’s currently precluded, and Westminster has been as intransigent on ceding those powers, as ones for a second referendum. Why? It won’t imperil the union and if the Scots want it and it makes roads safer why not?  

Similarly, there are issues under the Misuse of Drugs Act. Many seek for the Scottish Parliament to have the powers to decide on that issue. After all, it’s notionally in charge of both health and justice, and a radical position in Portugal has neither imperilled Spain nor has the legalisation of cannabis in many US States been precluded by Washington.

But leaving the wider debate aside there are modest changes that the Scottish Government are seeking to make which arguably are more the domain of health policy than drug reform. Establishing Drug Consumption Rooms are about saving addicts lives not encouraging wider consumption. Likewise, testing street tablets where sadly some products being traded illicitly are lethal. Surely, again monitoring what’s being taken isn’t fuelling consumption.

Why can’t Scotland be allowed to do that? If it fails, well so be it and if it works, surely other areas in the UK can follow? Whichever way it breaks, it’s academic to the wider constitutional question of independence or the union. 

There are many such minor issues from fireworks to aspects of road safety where reserved powers under Firearms legislation or Transport regulations impact. Why can’t flexibility be shown if Scotland wishes a tighter regime on the former and a slightly different one on the latter. Devolution was about allowing for local decision making and recognising the different societies. Demographics never mind the road network are different. 

More widely and of course more controversially are other more significant powers. Among them are those concerning immigration, employment and borrowing powers for the Scottish government, which are currently lower than for local authorities. 

Flexibility on them, if not control, shouldn’t be seen through a prism of being either a highway to independence or the entrenching of the union but of providing better governance for Scotland, as well as the testing of progressive policies for the UK.

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