Scott Macnab: devolution crisis looming over Brexit repeal bill

The Scottish Government does process rows - thats their speciality, said Scottish Secretary David Mundell.
The Scottish Government does process rows - thats their speciality, said Scottish Secretary David Mundell.
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The absence of any powers for Holyrood in the Great Repeal Bill has Nationalists agitating, writes Scott Macnab

The Brexit process has barely started, but Scotland has already been plunged into its first “constitutional crisis” of the EU divorce. Nicola Sturgeon has warned that the Repeal Bill which will transfer powers back from Brussels to the UK is a “naked power grab” on the part of the UK Government. The legislation was always going to be contentious, with Scottish Secretary David Mundell in resigned mood about the prospect of a warm reception from St Andrews House.

“Needless to say there will be a process row with the Scottish Government because the Scottish Government does process rows - that’s their speciality,” he joked as the Bill was published last week. But who’s to bless and who’s to blame? A vast array of powers and responsibilities are coming back to the UK from Brussels in 20 months’ time. As far as they affect Scotland, who’s to say which should fall within the jurisdiction the Scottish Parliament and which should lie at Westminster?

On the face of it, this is all set out in the Scotland Act which led to the Scottish Parliament’s creation and details the split between devolved and reserved controls. It’s clear from this that most current EU powers are reserved to Westminster, since the EU is based on the single market in goods, services even people. A report for MSPs on this issue by constitutional law expert Professor Alan Page of Dundee University finds that Westminster would take on the majority of the controls coming back over free movement of goods and people, as well as negotiation over global trade agreements. There are fewer powers which should be devolved to Holyrood, but they cover significant areas like justice and home affairs, agriculture, fisheries and the environment.

But the Repeal Bill makes no provision to return these to Scotland. Instead, everything will come back to Westminster and UK ministers will decide at a later date which controls are then devolved to Scotland. And herein lies the root of our latest “constitutional crisis” proclaimed by Brexit minister Mike Russell at the weekend. Ms Sturgeon says the arrangement “attacks the founding principles of devolution.” Senior figures at Westminster are quick to shoot down the notion of any “power grab”. They insist the Repeal Bill is just a starting point to meet the tight timetable for the logistics of the UK’s departure from the EU to be carried out. It means that come five past midnight on 29 March 2019, or whenever the Brexit date turns out to be, the UK won’t be left in legal and constitutional limbo. It is essentially a “mechanism” for extricating ourselves from the EU and a transitional arrangement. The transfer on of powers to Scotland and the other devolved administrations will follow incrementally.

But why can’t the Repeal Bill simply hand those “devolved” powers over justice and home affairs, farming, the environment straight to Holyrood, in line with the provisions of the Scotland Act? This is where it becomes more political, with Westminster insiders insisting that it may be necessary to have “UK framework” in some areas established mainly to ensure the smooth running of the UK’s internal market in goods and services. It means separate rules won’t begin to emerge north and south of the border, demanding things like goods to have different labelling arrangements in Scotland and England. Mr Mundell has pledged that the Bill will give the Scottish Parliament more powers than it has today and insists he is “happy to be held account” for that statement.

Broad areas including the environment, criminal justice and consumer rights and responsibilities, as well as energy, are among those where Scotland could be given more powers - but nothing more specific. Perhaps the difficulty lies in the amount of powers which straddle both devolved and reserved areas. The free movement of goods is widely seen as something that would go back to Westminster, but the control of food, live animals, plant and animal foodstuffs into Scotland would be devolved under the Scotland Act. Energy is another mixed bag with oil and gas, coal and nuclear energy reserved, while the emerging renewables sector lies at Holyrood. Police and criminal justice matters at EU level which tend to cover cooperation between law enforcement agencies would all be Holyrood’s - but not when it comes to terrorism and national security which belong with Westminster.

The SNP is naturally demanding that Holyrood must get all responsibility in devolved areas like farming and fishing, but want to go even further. Holyrood’s powers should also be increased with new controls over areas like employment law to protect key rights. Furthermore a fundamental review of the devolution settlement is also being demanded by the Scottish Government as a result of the removal of key protections provided by EU law for Scottish citizens. And this has real impact for people on the ground. Farmers need to know who will be responsible for the crucial subsidies they currently get through the Common Agricultural Policies - and more importantly who to blame if they don’t match the generous levels of the European scheme.

Similarly the Scots fishing fleet, free of the shackles of the hated EU Common Fisheries Policy, needs to know who will be setting quotas from now on and how the prospect of French or Spanish trawlers illegally fishing would be dealt with.

The Scottish Parliament may withhold consent for the Repeal Bill, as Ms Sturgeon has warned, but UK ministers could press ahead regardless. It won’t bring the system crashing down. It could be a more serious problem if the “power grab” narrative is allowed to gather force. Most Scots would struggle to identify the current powers of Holyrood, as polling repeatedly shows, but UK ministers underestimate the public mood here at their peril. As the EU departure process seems increasingly chaotic and marked by cabinet infighting, Scots won’t look kindly on a Brexit process they didn’t vote for which strips their Parliament of powers. It may even be a platform for a second referendum campaign.