Adam Tomkins: How to avoid a Brexit ‘power grab’ crisis

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May and Sturgeon must come to a sensible agreement over dividing EU powers between Holyrood and Westminster post-Brexit, writes Conservative MSP Adam Tomkins.

Delivering Brexit in a manner consistent with the United Kingdom’s devolution settlements is straightforwardly achievable. There are many inevitable complexities about Brexit, but devolution does not have to be one of them.

Scotland's First Minister Nicola Sturgeon welcomes her Welsh counterpart Carwyn Jones to Bute House in Edinburgh ahead of a meeting to discuss their concerns about Westminster's Brexit bill. Picture: PA

Scotland's First Minister Nicola Sturgeon welcomes her Welsh counterpart Carwyn Jones to Bute House in Edinburgh ahead of a meeting to discuss their concerns about Westminster's Brexit bill. Picture: PA

When devolution was established it never occurred to its New Labour architects that the UK would cease to be an EU member state. Ever since their creation in the Scotland Act 1998, it has been unlawful for the Scottish Ministers or the Scottish Parliament to act contrary to European Union law. The same is true in Wales.

This means, for example, that Scottish Ministers cannot develop a policy of industrial subsidy at odds with that of the UK Government, because both governments are bound alike by the voluminous EU law of state aids and public procurement.

Depending on the exit deal the UK eventually negotiates with the EU27, Brexit may well mean that the devolved administrations will no longer be bound by EU laws such as these.

But does it follow that Scottish Ministers should be free to subsidise Scottish enterprise irrespective of what happens to trade and industry in the rest of the UK? Would that not endanger the integrity of the UK’s internal market – a market in which we Scots trade four times as much as we do with the whole of the European Union?

That Britain is a single employment market with no barriers of any sort on movement of people, goods or services between Scotland, England and Wales is core to the case for the Union.

Much has been devolved since 1998, but nothing that jeopardises the UK’s single internal market. It would be in the interests of neither consumers nor producers for product safety and consumer protection rules to be different across the nations of the United Kingdom. These rules are uniform throughout the UK now and they must remain so after Brexit.

That is the thinking which underpins the provisions on devolution in the UK Government’s EU Withdrawal Bill.

But there is a problem. The scheme of the Scotland Act 1998 is that all powers not expressly reserved to Westminster are devolved to Holyrood. A number of powers exercised by the EU are not expressly reserved – they never needed to be because, when devolution was devised, they were neither Scottish nor British, but exercised by Brussels.

As regards Scotland, there are 111 of these powers: that is to say, powers touching on devolved competence in Scotland which are currently exercised at EU level. The argument between the governments has been over what happens to these 111 powers on exit day.

Under the Bill as introduced, all 111 would be held in Whitehall, at least to start with, with UK ministers releasing them to the devolved administrations over time.

To the SNP that is a “power grab”. They want all 111 to be repatriated directly to Holyrood. We need to see movement on both sides to find a solution. Brexit must be delivered in a way that respects devolution.

Yet, at the same time, it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved administrations in Edinburgh or Cardiff to be able to use powers formerly held at the EU level to pull apart Britain’s three-centuries-old internal market.

Fortunately, and to the credit of the devolved administrations, both the SNP and the Welsh government accept this. All parties accept that there will need to be a number of new UK-wide or GB-wide “common frameworks” (as they are being called) governing the use of at least some of the powers that are being repatriated from the EU through Brexit.

And to its credit the UK Government has clarified that such common frameworks will need to be agreed among the UK’s various governments and not imposed on the devolved administrations, top-down, by Westminster.

This, surely, is the basis on which consent for the Withdrawal Bill can be given by the devolved administrations.

What we now need is rapid progress on the negotiations over frameworks. That is what matters to businesses on the ground in Scotland, that is what will have a real-life impact on people here.

Looking at the substance of the 111 powers, many can safely be devolved without further ado; why aviation noise, for example, would need to come under a UK-wide framework I do not know. But there are some – a small number in important policy areas – where some sort of common framework will be needed.

There is a lot of work to do to hammer out the detail, but there has been good progress in recent weeks, including a consensus about the principles upon which we can all agree.

But this now needs to be accelerated: that is the key to unlocking agreement on the EU Withdrawal Bill.

The EU Withdrawal Bill has a long way to go before it is enacted, and it will need to be amended in order to obtain Scottish and Welsh consent.

All of this is straightforwardly achievable, and the Scottish Conservatives in both the Scottish Parliament and the House of Commons will continue to do everything we can to make that happen.

l Adam Tomkins is a Conservative MSP for Glasgow and a professor in public law