Chamber and committees

I have a final question. You mentioned the distinction between de jure and de facto referenda. The English legal system has a principle called stare decisis, which essentially means to look at previous decisions as setting precedents. The system is very strongly based on that principle, which, incidentally, is not the same in Scotland. Do you think that that principle, and the fact that we had an agreed referendum back in 2014, adds to what seems to many people, although not to everyone, to be an overwhelming argument for the Scottish people having the right to decide?

We have done that once before—it was agreed in the past. It is now at least 11 years since that happened and none of the reasons for not doing it again stack up. Does that create another mandate for a Scottish Parliament in which the majority of people support independence? If the English principle of stare decisis is being followed, surely that should lead to the same sort of agreement.

You are right to say that the various parties that oppose a referendum have not been able to state what the mechanism is for exercising a right that they acknowledge. That seems absurd, but that is where we are. In fact, none of the unionist members of this committee has offered any explanation of what the mechanism might be.

Do you have an idea of why, when it was agreed in 2012 that a referendum would be held in 2014, the UK Government felt that there was a compelling mandate? Why have we all had this “once in a generation” and “now is not the time” prevarication that we have talked about for the past 11 years or so? What do you think is in the minds of successive UK Governments that are trying to block this? Is it because they fear that, this time, people will vote for the independence of Scotland, or is there another reason?

I think that, when the committee went to London, most members went to hear evidence from a number of sources. My take, which might not be exactly the same as those of other committee members, is that the approach to intergovernmental meetings is an absolute shambles. I think that I mentioned while I was down there that ad hocery characterises all the different structures. The tier 1 meeting never happens on the same day as the other meeting—whatever it is called. Meetings are held only at the behest of the UK Government, when it decides that it wants to hold them, and there is no independent secretariat in many cases. That is all completely ad hoc.

I agree with much of what Stephen Kerr said, but I do not agree that we will find the answer in creating new structures, because it is not the structures that underpin this complete failure. The UK, as a unitary state, is almost unique—it is not a confederation or a federation. It is completely unable to manage the process of devolution. I am not a unionist, but I have said that, if I was, I would want devolution to work. You would think that everyone would want it to work.

It seems to me—I am interested in the cabinet secretary’s view on this—that the approach is underpinned by an attitude of contempt for the devolved settlements and an imperious approach to power sharing. There is no co-ownership of the structures or the processes. There is no agreement on them at the start—they are just decided at the whim of the Government of the day. That is not the case for every other country that you would care to examine, including Belgium, Germany and France, which take a different and more sustainable approach.

Until the attitude changes, and until there is not this fear of or contempt for the devolved Administrations, things will remain the same. Of course, the attitude varies depending on which party is in power—I mention the attitude towards Wales in relation to the pride in place programme, for example, which shows the asymmetric approach when a different party is in power.

This is an absolute shambles. It will not be properly addressed until there is—what do the Europeans call it?—a co-produced or agreed process, with structures, in which everyone is involved and takes ownership. That is not what happens just now. My view is that things will not change until that happens, but I am interested in the cabinet secretary’s view.

Yes. It is on that last answer and on the point that you raised about ambivalence versus contempt, convener. The contempt argument was borne out by Jamie Halcro Johnston’s comments when he purported to say that anything from the Scottish National Party will be discarded because it believes in independence so there can be no improvements in the meantime. That is another example of the contempt that we saw from the previous Government.

Before the referendum, commitments were given, as you remember, that if Scotland voted no, this Parliament would be constitutionally protected and that it could not be abolished. The Sewel convention made law that Scotland’s place in the EU was guaranteed, which turned out to be lies. However, the Smith commission was established after the independence referendum, and the unionist parties supported Scotland’s right to self-determination. Were they acting in bad faith?

I do not at all disagree with what has been said. To my mind and in my experience, the best period for intergovernmental relations was during the Cameron years, which involved not a structure but an ethos that was called the respect agenda, which seemed to work to a large extent. When it comes to trust and respecting confidences, there has never been a recorded instance of any Scottish Government minister, of any stripe, betraying or disclosing market-sensitive or political information. You would think that that would be enough to get some trust, even given that the fundamental constitutional aims of the Scottish Government and of the UK Government are so different.

The question really is, how will we get there? Will it take another election before there is a genuine attempt to address the issue, or will it perpetuate itself?

That was evident on our visit to London. I forget the name of the committee whose members we joined for a meeting, but the big casualty for us was the lack of transparency at parliamentary level about what is going on between the Scottish and UK Governments.

I understand the difficulties that the Scottish Government has because it is not in control of much of this, but the bottom line is that the punter does not have a chance of finding their way through all the conventions, the ad hocery and all the rest of it, which is also usually wrapped in confidentiality. From a punter’s point of view, there is no real transparency. They cannot see whether the Governments are working together, or where, if necessary, to apportion accountability or blame.

We discussed a bit in London the prospects for a joint committee of the two Parliaments—even one that resurrected the old Scottish Grand Committee, which would not be practical at all. There was a bit of exploration of different methods by which we could try to increase transparency, one of which included all the devolved Administrations and parliamentarians, and those from Westminster. I do not think that that would lead to the breakthrough that we want, but would the Scottish Government support that kind of initiative?

Thankfully, we have a member of the Smith commission here.

That is exactly what you said. On the point that was made about ambivalence, a report was produced in 2006 for Jack McConnell as First Minister that excoriated the UK Government, because most departments were not even being made aware of the need to talk about devolution. When we were in London, a senior civil servant or somebody from a think tank—I forget who it was—said that, in 2025-26, we are actually only in the foothills of devolution. The prospects of any immediate change and of people standing back and taking stock of devolution seem pretty remote if senior civil servants in London are saying that we are still in the early days. It is 20-odd years since that time—surely attitudes should have moved on in the meantime, and the fact that they have not means that we will have to do something quite different to effect change. I am talking about making changes in the context of the union now—it is nothing to do with independence—in order to see an improvement.

Or that unemployment has risen, which is not the case in Scotland.