John Swinney: There has been an orchestrated campaign to undermine devolution

First elected to Holyrood in 1999, John Swinney is one of a small number of MSPs who has been there since the historic reconvening of the Scottish Parliament. But almost a quarter of a century on, the Deputy First Minister and his party believe the devolution settlement now faces an existential threat.

In the hour or so before our interview takes place at Swinney’s office in parliament, the UK Government publishes its list of reasons for blocking the Scottish Government’s Gender Recognition Reform Bill, routinely described as the most scrutinised piece of legislation to ever pass through Holyrood and unarguably one of the most controversial. 

Swinney’s boss, First Minister Nicola Sturgeon, another 1999-er, is clear: the UK Government’s decision to use a section 35 order to strike down the legislation – a first in the history of devolution – is an attack on both the parliament and Scottish democracy itself. Unsurprisingly, her deputy agrees.

“It’s part of a pattern,” he says. “The pattern has been clear since the aftermath of Brexit and the departure of David Cameron. To be fair, I thought David Cameron was a prime minister who respected devolution; he understood the nature of devolution and he respected it. 

“Since then, that has been absent. There has been an orchestrated and systematic set of interventions to undermine devolution.”

Swinney says it began with the “disregarding” of the Sewell Convention – which seeks to preclude the UK Government from legislating in devolved areas – during Brexit and continued with the Internal Market Bill, and has now been “reinforced” by the use of the s.35 order. Previously, the UK Government used another provision of the Scotland Act, section 33, to intervene when it considered the Scottish Government had overstepped the mark, attempting to legislate in areas outside Holyrood’s remit.

In 2021, the Supreme Court upheld a challenge by UK ministers after the Scottish Parliament sought to incorporate elements of two international treaties – the United Nations Convention on the Rights of the Child (UNCRC) and the European Charter of Local Self-Government – into Scots law. 

Swinney says the striking down of the gender recognition reforms is purely a political move, despite statements to the contrary from both Prime Minister Rishi Sunak and Scottish Secretary Alister Jack, because had there been legal concerns, the UK Government would have taken the same action it did in 2021.

“We’ve been down this road before. If you’ve got a legal problem with the actions of the Scottish Parliament, you take the section 33 route. That’s what they did on the UNCRC bill. It surprised me that they did that because I didn’t think they’d want to look like they weren’t prepared to enhance the wellbeing of children, but they were prepared to do it because they saw the legal issues involved. 

“They’ve not gone down that route [this time] so that tells me that document is a collection of stuff to dress up what is fundamentally a political intervention.

“Of course, there’s been dialogue – Shona Robison spoke to Kemi Badenoch before the final stages of the bill. But let’s take the UNCRC bill as an example. The Secretary of State wrote to me during the UNCRC bill, pointing out before the final stages of the bill the issues about which he was concerned. I considered and judged they were concerns I didn’t want to take account of. Shona Robison had a conversation with Kemi Badenoch [on gender reform], so the dialogue is there, but fundamentally this is about politics.”

I ask why, if there was ongoing dialogue, why more wasn’t done to try and assuage the concerns of the UK Government when it came to the legislation.

“If you’re asking me to sign up to this being a subservient parliament, there’s no way I’m going to sign up to that,” Swinney says. “This is a devolved parliament which has got legislative entitlement to legislate for this country. My basic political position is that I don’t want us to have to seek the permission of somebody else for us to legislate, that’s why I want Scotland to be independent.

“This isn’t a constitutional bun fight. This is a piece of legislation that we’ve consulted on over a six-year period, affecting the circumstances of one of the most marginalised communities in our society. Nobody can say this hasn’t been scrutinised, that’s just a preposterous proposition. Parliament has legislated, the elected members here have taken their decision, and that should be enough.”

Since becoming an MSP, Swinney has seen lots of legislation (some good, some bad) enacted into law, both as a member of the opposition and of the government. In two decades, he has been leader of his party at Holyrood and held high-profile briefs such as education, finance, and Covid recovery. When finance secretary Kate Forbes announced her decision to go off on maternity leave there was only really one candidate to step in on her behalf, and the Deputy First Minister was called for.

“I could see the way things were heading, but it makes sense,” he says. “Kate Forbes was only going off for a temporary period on maternity leave and from the First Minister’s point of view, you either put in place a small temporary fix or you change an awful lot, and she didn’t want to do that. The temporary fix made sense and she had someone who had been round the block…”

Prior to the creation of the Scottish Parliament, Swinney was MP for North Tayside from 1997 until he stood down at the 2001 general election. He contrasts Holyrood favourably with the Commons and what he saw as its inability to legislate on matters important to people’s lives. 

[Starmer] will be a complete and utter disappointment to anybody who might hope he’ll be a radical. Look at what he’s going on about just now – it’s just absolutely pedestrian.

He cites the example of Scotland’s redress scheme for survivors of historical child abuse, which was launched in 2021 under his watch and offers one-off payments of between £10,000 and £100,000 to those who were mistreated while in care. Since its introduction, the scheme has faced some criticism from survivors who have described it as slow and overly bureaucratic.

“There are a number of different highpoints in the legislative framework [since devolution]. For me, the piece of legislation I took through the last parliament on redress for survivors of historic sexual abuse is an attempt to try to address the deep wrong and injustice that some of our fellow citizens have experienced and that’s a product of tenacious people who brought their terrible experience through the front door of parliament, and through many years parliament has responded to that.

“I don’t think that would have happened without Holyrood. I was a member of the House of Commons and at the end of the day’s business, a member of parliament would stand up and read a petition out from a constituent or an interested party… they would drop it in the bag behind the Speaker’s chair and nothing was heard of it again. Whereas here there’s a really clear, identifiable channel for public participation to change the agenda of parliament and of the country and that’s been used very strongly.”

Despite the successes, I ask Swinney if he regrets not being bolder on some of the legislation passed since the SNP came to power in 2007 and the party’s inability to shift the dial on independence in the years since the referendum. With the Supreme Court making it clear that the matter of legislating for another vote lies with Westminster, does his party now have to admit that any immediate chance has gone and return to playing a long game?

“I’m not really keen on playing a long game; I’m for getting on with it. The UK Government for its own credibility cannot stand in the way of the democratic wishes of the people of Scotland to secure a referendum. I think it’s impossible for the UK Government to sustain their existing position because it just flies in the face of democratic aspirations. It’s becoming increasingly clear that the UK Government maintains its current line with enormous difficulty.”

SNP members will meet in March for a “special democracy conference” to discuss what exactly the way forward should be. Amid considerable disquiet about the First Minister’s plan to go into the next general election on the basis that it is a de facto referendum, the conference will vote on a motion which presents two possible scenarios: either to turn the next general election into a de facto referendum or contest it on the issue of securing agreement for a transfer of power to allow Holyrood to legislate for a referendum. Should that demand be rejected by the new UK government, the SNP will contest the Holyrood election in 2026 as a de facto referendum.

There has been an orchestrated and systematic set of interventions to undermine devolution.

Of course, based on recent polls, it looks likely the SNP would be negotiating with a Labour government rather than a Tory one. Is Swinney worried that a government led by Keir Starmer will reduce support for separation?

“No. He’ll be a complete and utter disappointment to anybody who might hope he’ll be a radical. Look at what he’s going on about just now – it’s just absolutely pedestrian. It’s a bit like the Eric Morecambe skit about playing the right notes but not necessarily in the right order. Starmer is using the same words as Rishi Sunak, but not necessarily in the same order. 

“[Under Starmer] there’s no way back into the single market let alone the European Union. And the rhetoric on the NHS is profoundly unsettling. The agenda that he’s offering is not one that’s particularly attractive to where people in Scotland are.”