Joyce McMillan: Tories have three options on devolution

Scottish Government ministers John Swinney and Michael Russell head to London on Monday for Brexit talks with Theresa May's deputy, Damian Green

On Monday, Scotland’s Brexit minister Mike Russell, and the Deputy First Minister John Swinney, will head to London for the latest round of Brexit talks with Theresa May’s first Secretary of State and effective deputy, Damian Green. Both men are veterans of Scottish constitutional politics, well versed in modern European models of sovereignty, autonomy, and devolved power; so the irony involved in the fact that these talks are taking place just as the post-Franco devolution settlement in Spain faces a massive and perhaps terminal crisis, will not be lost on either of them.

For in truth, if Damian Green was looking for a playbook of how not to handle a movement for independence in one part of a European country containing several ancient nations, he could hardly do better than examine the lamentably authoritarian response of Madrid to the Catalan government’s intention to hold an independence referendum next weekend. Madrid has a case to make, of course; despite the provisions of the United Nations Charter on the right to self-determination, the post-1975 Spanish constitution makes no provision for the secession of any of the country’s “autonomias”, or devolved regions.

Whatever the legal position, though, the harsh and bullying reflex response shown by Mariano Rajoy’s minority Spanish government is bound to stir memories of the repression of the Franco era, and seems unacceptable and shocking in a modern west European democracy. And it’s small wonder that in responding to a question on Catalonia yesterday at Holyrood, Nicola Sturgeon offered some rare words of praise for a Conservative Westminster government, describing the Edinburgh Agreement of 2012, which paved the way for Scotland’s independence referendum, as a model of democratic practice which Madrid might be well advised to follow.

When he sits down to negotiate on Monday, the avoidance of a Catalan-style debacle over Scotland’s Brexit deal should therefore be Damian Green’s first concern. His difficulty, though, is that the UK government’s current position – which assumes that all EU powers will be returned to the UK government on Brexit, with any further devolution to be negotiated thereafter – is in direct contradiction to the provisions of the Scotland Act 1998, which makes it absolutely clear that all legislative powers, except those specifically listed as being reserved by Westminster, will belong to Holyrood. Now, it’s not surprising that most Conservative politicians are none too familiar with the provisions of the Scotland Act; indeed at the time when it passed through Westminster, in the heady early days of the first Blair government, even Labour members voting for it often gave little detailed attention to what is, by British standards, an exceptionally clear and radical piece of legislation, shaped by the Scottish Constitutional Convention, and the late, great Donald Dewar.

Yet pass it did; and its existence means that Damian Green now has three options, in considering what line to take. The first is to ignore the Scotland Act, and to claim the 111 EU powers in Scottish devolved areas - now listed by the Scottish Government - as Westminster’s, at least until a new devolution deal can be agreed.

This is the strategy most Tories, in Brexit mood, would probably instinctively choose; but it would leave the Brexit settlement over devolved issues highly vulnerable to judicial review, since it clearly conflicts with existing UK law.

The second option - also likely to win roars of approval from the Tory benches - is to try to amend the Scotland Act, in order to make a radical exception in the case of EU powers returning to the UK. This would perhaps be the tidiest solution, from a Westminster Tory point of view; but it also clearly exposes what the Scottish and Welsh First Ministers have called Westminster’s Brexit “power grab”, and is therefore the one most likely to provoke a furious and disruptive political response.

And then there is the third option, which involves a graceful climb-down by the UK government from its current approach, and an acknowledgment that formally, under the Scotland Act, all the powers in devolved areas previously held by the EU should pass directly to Holyrood. The quid pro quo Damian Green could demand, in return for this, is a hard-and-fast guarantee from the Scottish Government that in areas previously covered by EU legislation which affect the working of the UK’s internal market, it will not vary those existing EU provisions without further consultation with the UK government, and perhaps even some degree of co-consent from Westminster. And if, as Damian Green has said, the continued smooth working of the UK internal market is his top priority, then that provision should meet his concerns in full.

So what could go wrong? Well, two things. First, the SNP might do what they are so often accused of doing, and try to obstruct a deal in the mistaken belief that a continuing stalemate over Brexit will build support for independence at home; although John Swinney at least – not to mention Nicola Sturgeon – is surely far too cautious a politician to make that mistake.

And then secondly – given the remarks about deregulation made by some of Theresa May’s ministers – it might soon become clear that the UK government’s top priority is not so much the smooth working of the UK’s internal market, as the prospect that it will be able to shape that market in whatever way it chooses, even if that involves discarding hard-won EU rights and protections in pursuit of trade deals with countries that do not aspire to the same standards.

If Damian Green is not prepared to consider option three, in other words, then that raises the possibility that the UK government simply wants to be free to depart from EU standards at will, without any need to consult Holyrood, Cardiff or Belfast. And with key issues from fracking to pesticides among the subjects now under dispute, that should be a matter of concern to everyone in Britain; and above all to those who once believed that we had moved beyond the age when all issues were decided by simple Westminster majority, into one in which power in the UK would forever be more widely and equally shared, and held that much closer to the people.