After nearly two decades, devolved government in the UK finds itself in unchartered waters this morning following the Scottish Parliament’s rejection of the UK Government’s legal framework for the country after Brexit.
Perhaps this is a confrontation the young Parliament has been avoiding since it was reconvened in 1999. The outcome will determine the political mood for years to come. Sweeping new powers are returning from Brussels, but there is now the prospect this could all be overshadowed by a new climate of grievance with Holyrood’s wings being clipped by its Westminster master.
The EU Withdrawal Bill creates a legal framework which largely mirror current European laws in the myriad of areas where powers will be returned from Brussels. The row which has flared up with the devolved administrations centres on claims of a “power grab” in areas which should come back to the Scottish Parliament in line with the devolution settlement.
It includes 111 powers which belong at the Scottish Parliament – but there are 24 disputed powers which the UK Government has decided to hold onto, arguing that UK-wide rules are needed in these areas to ensure the smooth running of the UK’s internal market. The cross-party anger at Holyrood, with Labour and the Liberal Democrats also opposed, indicates this is not simply sabre-rattling on the part of the SNP.
The powers in dispute may seem relatively mundane, covering areas like animal health and traceability, feed safety and hygiene law, as well as chemical regulation. Both SNP ministers in Edinburgh and Tory ministers in London actually agree that the 24 areas in dispute should be subject of UK-wide frameworks – it’s just a matter of agreeing how to implement this.
But there is a fundamental principle at stake which goes to the heart of the authority of the Scottish Parliament. If Westminster wants to make laws in these devolved areas they should seek consent of Holyrood, just as they would in all other devolved areas such as policing and health.
Previously, when areas of disagreement arose, there seemed to be mechanisms in place to deal with it. So when parts of the UK Welfare Reform Bill a few years ago prompted objections at Holyrood, the UK Government simply removed those areas deemed unacceptable by Holyrood.
This time no such compromise appears likely. UK ministers look certain to press ahead with the Bill. On this constitutional row, it seems that Westminster is determined to take a stand.
In fairness, there has been clear movement from the UK Government over the “power grab” concerns. Changes have been made to the original proposals to ensure all 111 devolved powers do come back to Holyrood. Only the 24 disputed powers will be frozen temporarily with a seven-year “sunset clause”, meaning they will return to Holyrood after this period.
During this period, Westminster must also seek consent of Holyrood to legislate in these areas. However, Nicola Sturgeon has lasered in on the fact that UK ministers can still press ahead even without that consent. What will worry the MSPs manning the barricades to “defend devolution” is the crushing apathy on the part of the wider Scottish public about all this constitutional turmoil.
Asked to explain how this would impact on the lives of ordinary Scottish voters, a spokesman for Ms Sturgeon ventured that it could jeopardise the rules surrounding GM crops which differ between Scotland and England. An important issue for some, but hardly the stuff of popular uprisings over a threat to Scottish democracy. The truth remains, as all polling shows, most Scots are not clear about the powers of the Scottish Parliament at the moment.
That a group of seemingly technical regulations covering areas like food labelling and crofting may have to wait a few years before being returned from Brussels, via London, will only ever have limited traction with voters. It’s this which has emboldened the UK Government to take a stand. They see it as a technical argument about obscure regulations and blame the SNP for using to it to manufacture a grievance and push the case for independence.
The Welsh Assembly had similar “power grab” concerns but then decided to accept the UK Government’s compromise deal, appearing to leave Ms Sturgeon isolated. The Liberal Democrat peers, Lord Steel, Holyrood’s inaugural Presiding Officer, and Lord Wallace, the former Deputy First Minister, were both founding fathers of devolution and have also argued that the compromise deal protected Holyrood’s integrity.
So the support of Labour and Liberal Democrat MSPs has certainly been a welcome boost for Ms Sturgeon in this respect, showing she at least has cross-party support at Holyrood. To add to the confusion, the Scottish Government has passed its own Brexit Bill, the EU Continuity Bill, which is set to go to the UK Supreme Court after Holyrood’s Presiding Officer Ken Macintosh said it was outwith the Scottish Parliament’s competence. But if judges back it, we could be faced with the bizarre situation of two competing post-Brexit legal frameworks being in place in Scotland.
This is the real constitutional crisis at the heart of this dispute. Can shared sovereignty really work in a devolved set-up? And especially with two Governments on opposing sides of the constitutional fence. This row over Brexit certainly seems to have clearly mapped out its limits. The UK Parliament has always ultimately had the authority to override the Scottish Parliament when disputes arise. MSPs have never really had a veto. It is only now that this quandary at the root of devolution is finally being tested. With the rise of nationalism ensuring a pro-independence administration has been ensconsed in Scotland for almost a generation now, this showdown has been coming as Holyrood has incrementally gained more powers in the two decades since devolution,