Forget Scotland in Europe. It is the UK which deals with Brussels now
To be clear from the outset, that may not be a consequence of political machination. It may simply be inevitable, a factor of political reality. It may even provide welcome clarity.
That has not forestalled SNP protests. In the Holyrood chamber, Angus Robertson noted that the EU deal had been reached 'without the explicit agreement' of the devolved Scottish Government. That was, he said, 'an affront to devolution'.
Responding, Labour's Neil Bibby said the External Affairs Minister was 'miserable, opportunistic and inconsistent.' For the Tories, Tim Eagle said the SNP would take Scotland back into the Common Fisheries Policy – an outcome he called a 'horror show'.
Read more by Brian Taylor
Mr Robertson's objection was that fisheries, as a topic, is devolved to Holyrood. Yet it had featured in the EU deal without any consultation with the Scottish Government. He listed the meetings, cancelled by Whitehall, when the topic could have been raised.
UK Government sources say this is limp nonsense. They say the Scottish Government was consulted in generic terms, including at a meeting just prior to the talks, while conceding that there was no specific involvement in the negotiations, not least because the fisheries issue was concluded around midnight on the eve of the London summit.
They say the Scottish Government has 'tied itself in knots' over the issue, contriving to end up on the same side as Nigel Farage. To examine this issue, we need to delve back into history – and catch the scent of that devolutionary fudge.
As I recall, the aroma first arose in the run-up to the creation of the Scottish Parliament. Importance was attached to a role for the devolved legislature in the European Union. (The UK was, of course, still a member at that point.)
The question was how to balance those devolved aspirations with the reality that it was the United Kingdom which was the EU member state. It was the UK which had an audience in Brussels.
The result? Fudge. The 1997 White Paper which led to devolution stated that relations with Europe were 'the responsibility of the United Kingdom Parliament and Government'.
There is no real role for the Scottish Government in Westminster's dealings with the EU (Image: free) However it added that 'the Scottish Parliament and Executive will have an important role' in areas where EU business affected devolved areas.
There were encouraging words about the involvement of Edinburgh. There was talk of the 'spirit of collaboration'. But there was also emphasis upon the need for a common UK position. Upon ultimate UK sovereignty.
In the early years of devolution, there was the Sewel Convention: that the UK would not normally legislate in devolved matters without Edinburgh consent. But that eroded over time – and the UK Supreme Court ruled in 2017 that the Convention was just that. A convention, potentially significant but with no justiciable force.
Post Brexit, EU laws were repatriated to the UK. Scottish Ministers complained that this was done without the agreement of the Scottish Parliament.
Which brings us to today. Fisheries are still devolved. But, arising from the 1998 Scotland Act, relations with the EU are reserved to the UK. (There was no room for fudge in statute.)
The 1997 White Paper vaunted UK clout as an EU member state. The UK later left the EU. Politically contentious – but irrelevant to power. It is sovereignty which counts.
You may say that EU access to UK (primarily Scottish) fishing waters was sensibly traded for other gains – including speedier market access for salmon and other seafood from our shores.
You may say that it was a treacherous sell-out. Either way, it is clear that the lingering Sewel concept is now utterly consigned to history. It is clear that continuing relations with the EU – from outwith the EU – are, in practice, a matter for the UK Government.
There will still be talk, as there was in that 1997 White Paper, of consulting and involving Holyrood. But, in the final analysis, little remains of the White Paper concept of collaborative endeavour.
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Again, to be clear, that applies regardless of the content of the deal. For example, Angus Robertson only launched his attack on the UK Government – after welcoming aspects of the London agreement, other than fisheries.
If anything, there is a sharper dilemma for the devolved government in Wales. Led by Labour's Eluned Morgan. Critics there also seized upon the constitutional question, saying that she had allowed the Senedd to be entirely sidelined.
Of necessity, Baroness Morgan's response featured caveats. She welcomed the details of the deal, praising the efforts of her party colleague, the Prime Minister. She said it would bring Wales 'more opportunity for jobs and growth'.
But she noted, obliquely, that she would have 'liked more discussion' between the Welsh and UK governments over the issue of fishing.
Not going to happen, in practice. We are back to statute and sovereignty. Not White Paper fudge. External relations, including with the EU, rest with the UK.
Which, to repeat, offers clarity. John Swinney said this week that the only way to protect Scottish fishing now lay with independence. Critics say that rejoining the CFP would involve further concessions.
There is, then, a fundamental dispute. Independence versus the Union. Equally, though, there is practical co-operation within the devolved structure.
Only this week, the Scottish Secretary Ian Murray announced increasing borrowing powers for Holyrood. He published a report setting out the efforts of UK Departments, such as HMRC and the DWP, to ease devolved tax and benefits functions.
In return, the Scottish Government and other devolved administrations work closely and daily with Whitehall, in the common public interest.
A straightforward constitutional choice, then. Ian Murray says 'working collaboratively with the Scottish Government' is a key part of the Starmer plan for change.
John Swinney says he will govern sensibly and consensually within devolved powers – but invites us to consider how much more could be achieved under independence. All clear?
Brian Taylor is a former political editor for BBC Scotland and a columnist for The Herald. He cherishes his family, the theatre - and Dundee United FC
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