Downing Street has pledged to respect “the spirit and the letter” of the UK’s devolution settlement during the Brexit process in a bid to head off a possible constitutional crisis.
Writing in The Scotsman, Theresa May’s deputy Damian Green insists that vital legislation to implement Brexit is not a “power grab” and promises that Brexit will strengthen devolution.
First Secretary of State Mr Green, who travels to Scotland today to unveil a £300 million UK government investment in a city deal for the Edinburgh region, writes: “No-one should be in any doubt that the intention of the UK government is to ensure that the spirit and the letter of the devolution settlement is respected in the course of the repatriation of powers.
“The bottom line is that after we leave the EU, the Scottish Parliament will have more powers and responsibilities than it has today.”
His comments come as the new Scotland Office minister Ian Duncan said he was taking a threat by the Scottish and Welsh first ministers to oppose the UK government’s Brexit repeal bill “very seriously”, and would work to find a compromise that all sides can agree to.
Another UK minister warned that refusal to give consent to the repeal bill would result in a “broken statute book”, with gaps in environmental regulations and workplace protections.
Under UK government proposals, all EU responsibilities in devolved areas like agriculture, fisheries and the environment will be transferred to Westminster and “ring-fenced” until it is clear which powers can be handed to devolved administrations without creating trade barriers within the UK.
Shortly after the European Union (Withdrawal) Bill was published last week, Nicola Sturgeon and Carwyn Jones said they would not be able to support the plans unless they were fundamentally changed.
In a joint statement, the Scottish First Minister and her Welsh counterpart said the Bill was a “naked power grab” and an “attack on the founding principles of devolution”.
Speaking on the day he is elevated to the House of Lords, Mr Duncan said he was confident that a compromise deal with the Scottish Government can be reached.
He acknowledged that MSPs at the Scottish Parliament could force a “constitutional challenge” if they refuse to give their formal consent to the crucial legislation, which will repatriate thousands of EU laws from Brussels back to the UK.
However, he said he was convinced that a “common approach” could be agreed with the Scottish Government, predicting that ministers will come under pressure from farmers and fishermen to ensure a smooth transition after Brexit.
A House of Lords committee report this week called on the UK government to reverse its approach, handing all EU powers in devolved areas to Edinburgh and Cardiff, before taking back control of specific responsibilities that need to be held by Westminster to facilitate trade.
Mr Duncan said that approach would create uncertainty for business as the UK leaves the EU, with powers being shifted between parliaments “in a guddle” as problems emerged with the UK’s post-Brexit regulatory regime.
But he said Brexit would not require any changes to the Scotland Act, which sets out which areas of responsibility are reserved to Westminster, and which are devolved to Holyrood.
If MSPs refuse to pass the required Legislative Consent Motion, Westminster could technically overrule the decision – but this has never happened before and would be likely to spark a major constitutional clash and possibly a legal challenge.
Mr Duncan, a former Conservative MEP who is controversially being made a peer despite failing to win a seat at last month’s general election, said he was taking this possibility “very seriously” but that it would also create big risks for Scotland.
“There would be a constitutional challenge that would emerge quite quickly, but there would also be a very clear, legitimate challenge for the functionality of the laws that are affected for Scottish business, for Scottish trading,” he said.
“I would have thought that we can find a common approach here. This is not about the constitutional question, this is about functional delivery of a working legal system post-Brexit. I think we’ve got time to get this right.”
Under the government’s plans, powers and responsibilities currently exercised by the EU will be returned to Westminster for a “transitional” period before they are devolved.
Defending this decision, Mr Duncan said: “To my mind, the most important thing is that we bring the powers back to the UK and then we take time to get it right, to establish what needs to be common to the home nations and what should be devolved thereafter.”
Giving the example of fishing quotas, he said if powers over these were immediately devolved to Scotland without a UK-wide framework in place, it could lead to confusion between fishermen on either side of the Border.
Ministers in the UK government are privately confident that MSPs will not take the risk of disrupting the Brexit transition by refusing to give their consent to the Bill.
“The consequences of this legislation not being allowed through would be a broken statute book, in the UK and in each of the devolved administrations,” said one.