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The Baroness, the Privy Council and Scotland

‘Don’t call me Baroness!’ screamed the Baroness to be. Ruth Davidson at just 41 has been shunted off to the politician’s equivalent of the elephant’s graveyard; the House of Lords. Except in this graveyard the undead talk and wield power over the living. Understandably she was feeling a little tender about the whole experience and when a BBC reporter had the temerity to refer to her by her new title, so she took the matter up with his bosses. The media responded by shouting ‘Baroness’ as loudly as it could from every headline. It’s really not a good idea to hack off a hack. They do stick together.

Yet this is not Baroness Colonel Ruth Davidson of the 32 Signal Regiment’s most controversial appointment. The most controversial, and puzzling, appointment Ruth Davidson has received is one made in 2016 in the wake of the Brexit vote. She was made a member of the Privy Council and received the title ‘The Right Honourable Ruth Davidson’ as a result.

To some the Privy Council may sound faintly rude and boring. Its a title leftover from Tudor times when it consisted of the monarch’s court of advisors, made up of nobles, judges and clergy. Today the manifestation of the Privy Council that people recognise is the Cabinet. Every member of the Cabinet is a privy counsellor and senior members of the Opposition. But senior law officers; the attorney general, Lord Advocate, judges, civil servants, the leaders of the devolved administrations and senior clergy of the Church of England are also appointed as a matter of course.

It is a working title and goes with a job. Which is why Ruth Davidson’s appointment is perhaps confusing at first glance. She does not have a job that goes with being a privy counsellor. Her colleague Alistair Jack as Secretary of State for Scotland does; so did his predecessor David Mundell. But leader of the Conservatives or leader of the opposition in Holyrood does not generate an automatic appointment. Kezia Dugdale wasn’t one. Neither was Jackson Carlaw. Only a handful of the 650 privy counsellors are stand alone appointments, generally for long service as a parliamentarian. So why Ruth Davidson?

In the Edinburgh Agreement, signed by David Cameron and Alex Salmond amongst others, it says ‘The governments have agreed to promote an Order in Council under Section 30 of the Scotland Act 1998..’ The Council in question is the Privy Council. The power to grant a referendum under Section 30 came directly from the Privy Council via Michael Moore, the Secretary of State for Scotland. That is the means by which a future referendum will be granted or refused via Section 30. It is the Privy Council that keeps the Secretary of State for Scotland going as a de facto Viceroy and if Holyrood has its powers taken away, Westminster will use this office to govern Scotland. It also allows members to be privy (hence the name) to information that would otherwise be secret, and which they cannot share with anyone other than another member of the Council.

The Supreme Court started off life as part of the Privy Council’s judicial committee, but was sectioned off in 2009 in an attempt to separate political and judicial powers. However, all the judges of the Supreme Court are still appointed privy counsellors. When John Bercow was shouting about an act of executive fiat around the proroguing of Parliament, it was the Privy Council, to whom this power belongs, that had acted and who were challenged in the Supreme Court. When the Supreme Court said that Boris Johnson had been very naughty and not to do it again, there were calls to abolish the Supreme Court and bring it back under the control of the Privy Council.

If Martin Keatings succeeds in the Peoples Action on Section 30 and the opposition appeals that appeal will go to the Supreme Court, because it is the business of the Supreme Court to deal with matters of the ‘utmost constitutional importance’.

Technically it’s the Queen who is in charge of the Privy Council, but the Lord President at the moment is  Jacob Rees-Mogg. While Boris Johnson has been doing all the eye catching, hair mussing buffooning about, Jacob Rees- Mogg has been quietly spreading the tentacles of the Privy Council everywhere, testing how far it can go.

The prorogation scandal was the first serious battle where the Council went head to head with Parliament, but as Brexit progresses you can expect more. The Privy Council has the powers to make secondary legislation by virtue of cabinet ministers being Privy Counsellors and you are going to see some serious turf wars between Parliament and the Council about who has the right to amend legislation. There are several hundred laws to be adjusted in the wake of Brexit and most of those adjustments will be done by statutory instrument, that is, either by the relevant minister, or the Privy Council.

Which brings us back to Ruth Davidson. Privy counsellors are appointed by the Queen. Although it’s custom and practice for it to go with a governmental role, it doesn’t absolutely have to. Baroness Davidson doesn’t have an automatic right to attend meetings, but she can be summoned to attend one. She has access to the briefing papers of the Privy Council. There’s going to be an awful lot of talk about Scotland in them. Which may go some way to explaining why a 41 year old politician is heading down to become one of the walking dead parliamentarians who cannot be voted out, no more pesky democracy to get in the way of her being appointed to other senior roles. She will grit her teeth as she pulls on the ermine, because it keeps her in active government.

This is the slow executive creep being deployed through the skilful exploitation of the grey areas that the Privy Council allows. There is something of the duper’s delight about Jacob Rees -Mogg with his ostentatious top hat, the man jokingly referred to as the minister for the 18th century, but people shouldn’t laugh at his pantomime villain act. It’s a declaration of intent and it’s not innocent. Britain, and more particularly Scotland, needs to keep a very close eye on him and on the soon to be Baroness Davidson, that they do not reverse the progress of devolution and drag Scotland back hundreds of years.

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