No Kings in Scotland
You will likely be familiar with the No Kings protests in the US. They are a reaction to the anti-democratic practices of the Trump administration which is riding roughshod over both the letter and spirit of the law in democratic accountability. He is subverting the norms of democracy to reduce its democratic nature.
Clearly the Scottish Government is not in Trump's league when it comes to subverting democracy, but increasingly it is seeking to break the norms of parliamentary democracy by inserting various 'King Clauses' in legislation, or by creating 'King-Maker' legislation in the first place.
This is a striking element of the Natural Environment Bill which was debated in the Scottish Parliament yesterday. It contains a blanket clause which gives what has been called and 'unprecedented' power allowing the Scottish Government to overrule or simply ignore environmental laws that apply to other people. This is a 'King Clause' because it gives the government the power of a king.
The difference between a king and a First Minister is supposed to be consent. A First Minister is elected to parliament, but that is not the end of the consent that a parliamentary system requires. The consent to take your seat in a parliament is not the same as consent to do whatever you like once there. Each major decision is, itself, meant to achieve consent through parliamentary debate.
If you can enact major decisions that overturn the will of parliament and you can do it without discussion or consultation then the role of parliament is undermined. Laws are not really laws if they don't apply to everyone. A blanket power to disobey a law you have passed is exactly why this has been described as unprecedented.
The problem is, it isn't unprecedented. The National Care Service legislation initially contained exactly such a sweeping power. Section 19 of the Bill allowed Ministers to declare at will that a care board was failing and so remove its decision-making and take those power directly. There was no definition of 'fail' and no requirement to gain anyone's consent to approve it, least of all parliament.
This was an egregious overreach and was removed by parliament at Stage 2, before the whole Bill was eventually scrapped. But this practice is creeping in more and more. We are becoming used to legislation which is explicitly designed to bypass parliament – it is known as 'enabling legislation' but is better thought of as 'Kings Prerogative'.
The point of enabling legislation is that it does nothing more than enable a government to act autonomously and without consultation in the areas which the legislation covers. Examples of enabling legislation include the Coronavirus (Recovery and Reform) (Scotland) Act 2022, Good Food Nation (Scotland) Act 2022, Social Security (Scotland) Act 2018, and Children and Young People (Scotland) Act 2014.
In each case the legislation gave the power to government ministers to do something, but only indicated what it would be in the very vaguest terms. In that regard, enabling legislation is not new and is not unique to Holyrood, but means it is often particularly hard to understand what the Scottish Government is doing because it is very much more generous with adjectives than details.
This is not only reducing accountability and debate and it is not only leading to less well-considered policy-making, it is taking the politics out of politics. Enabling legislation is deeply embedded in the ideology of technocratic government, that 'it's not what you do it's the way that you do it'. Don't pay attention to details, just accept that whatever we say is the best way to achieve outcomes is the best way.
In the end a lot of the above has proved fairly innocuous in practice – not effective (eight years on and the social security powers aren't even all in place yet), but fairly harmless. This proposal, the proposal to allow government to overrule environmental legislation, is not.
It is very easy to see how it will be likely to be used when we look at the Flamingo Land affair. Rejected in large part based on negative environmental impact reports, the Scottish Government tried to overturn that rejection and faced a severe backlash. Now it is giving itself the power to make inconvenient environmental impact reports simply go away altogether – but only when it wants, and always without consultation or discussion.
That is the power of a king, and Scotland should not accept it.