Brexit poses a challenge for devolution – of that there is no doubt. Leaving the European Union cannot be allowed to mean that the United Kingdom somehow reverts to the constitution of 1972, the year we joined, when everything was controlled directly from London.
Equally, however, it is important that the immense range of regulatory powers coming back to Britain from Brussels are not used to undermine the integrity of the UK’s internal market. Navigating safe passage between these poles has not proved easy but, in recent weeks, it is Theresa May’s UK government that has led the way, with Nicola Sturgeon’s SNP swimming in ever decreasing circles – dancing on pinheads, as it was described in Holyrood last week.
Last year both governments got it wrong. In the notorious clause 11 of its EU Withdrawal Bill the UK government gave the impression that the repatriation of powers from Brussels to Britain could happen almost as if there were no devolution at all in Scotland or Wales. All the parties in Holyrood united to object to this ham-fistedness. In the ensuing months, UK ministers have listened and have acted to turn their original proposals on their head. A key Holyrood committee decreed that clause 11 would have to be “removed or replaced”. This has now happened. An entirely rewritten clause 11 was passed by the House of Lords last week, one which now gets the balance right between respecting devolution, on the one hand, and ensuring that Britain is not undermined by unmanageable regulatory divergence between England, Scotland and Wales, on the other. This is not just my view – it is the view of the (Labour and Lib Dem) Welsh government, as it is the consensus view right across the House of Lords.
The new clause 11 says this: all powers currently exercised at EU level which fall within devolved competence will come directly to Holyrood, other than a small minority where the two governments are already agreed that UK-wide common frameworks will be required to safeguard the integrity of the UK’s internal market.
Yet still the SNP objects. In its view, Holyrood should not consent even to the new clause 11. This is because the nationalists are not in fact interested in doing a deal to enable Brexit to be delivered compatibly with devolution. Sturgeon, as she has been ever since the day after the EU referendum two years ago, is fixated on doing everything she can to turn Brexit into an excuse for a second independence referendum. Always belligerent about Brexit, she is increasingly fundamentalist, overruling her own ministers two weeks ago to ensure that they did not sign up to the same deal that the Welsh government agreed to.
Increasingly fundamentalist but, shockingly, not yet increasingly isolated. For Scottish Labour and the Scottish Liberal Democrats are still to back the new clause 11. It is good enough for Welsh Labour, it is good enough for the Welsh Liberal Democrats, and it is good enough for both these parties in the House of Lords. But Richard Leonard and Willie Rennie would still rather dance to the nationalists’ tune than back a law designed to ensure that devolution is not used to jeopardise the UK’s internal market.
Well so be it. The Scottish Conservatives said at the last election that we will be the strong opposition to the SNP. We have stood up for devolution – we were sharply critical of the UK government’s original clause 11 – and we have worked tirelessly to have it replaced. But unlike Labour and the Lib Dems, we will never allow the nationalists to use Brexit – and the undoubted challenges it poses – as an excuse for breaking up Britain. Brexit can and must be delivered compatibly with devolution. The new clause 11 of the EU Withdrawal Bill does exactly that, which is why Holyrood should say no to the nationalists and give its consent.
Conservative MSP Adam Tomkins is John Millar Professor of Public Law at the University of Glasgow School of Law