Westminster and Holyrood head for constitutional crisis over Brexit Bill

Scotland faces a 'constitutional crisis' amid escalating tensions between Edinburgh and London over the controversial Bill to repatriate powers after Britain's EU departure, Holyrood's Brexit minister has said.

The EU chief Brexit negotiator Michel Barnier, right, welcomes Scottish First Minister Nicola Sturgeon for a meeting at EU headquarters in Brussels. Picture: AP Photo/Geert Vanden Wijngaert

Michael Russell said he believed the UK government is planning to use so-called ‘Henry VIII’ powers to decide if new controls will lie with the Scottish Parliament or Westminster – and warned that this would be “unacceptable”.

He even suggested that it would lead to an impasse in the administration of key areas like civil law in Scotland, as Westminster has had no experience in this field in decades.

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First Minister Nicola Sturgeon has said that the Scottish Parliament will withhold consent from the Repeal Bill in its current form, branding it a “naked power grab”. But Holyrood cannot block the Bill, meaning the UK government could press on regardless.

Mr Russell warned yesterday: “I think we are in a constitutional crisis and that crisis becomes worse if this takes place.

“Essentially, it means that we have a situation that Scotland has said, and its Parliament has said one thing, the UK Parliament has simply overruled it.

“I don’t think that leads to good governance, I don’t think that leads to effective governance. I think you want to avoid that in every possible way.

“You can’t simply blunder into this crisis, it is the wrong thing to do. There will be outcomes if that happens which will be very serious because there will be areas that are inoperable.”

The minister warned that civil law is “entirely devolved” and the decisions are all made in Scotland.

“There are areas within that where decisions will be made in England over things that they have no knowledge of, or information of – they haven’t been responsible for civil law for the past 20 years.

“We will have circumstances in which decisions are being made without any knowledge of the circumstances, without even consulting the appropriate Scottish law officer.”

The so-called Henry VIII powers could be used to push through up to 1,000 pieces of secondary legislation without parliamentary scrutiny,

Asked if he was concerned the Henry VIII powers will be used to decide what is and is not devolved, Mr Russell replied: “Of course, and that’s what they are intended to do.”

Mr Russell urged all MSPs to support the Scottish Government’s call for protection for devolved powers to be written into the Bill.

He said that the current stale-mate will only be resolved with a recognition from the UK uovernment that the power which currently exist in Europe “will come back to the devolved administrations”.

Mr Russell added: “Then there can be a discussion about frameworks that can move forward. Without that happening, then not only is it unacceptable and it goes against devolution in its entirety, it’s unworkable.”

“You’re actually going to enter into a complete mess.”

The reserved list of powers over Scotland which reside with Westminster are set out in Section 5 of the Scotland Act. Everything else is widely viewed as being devolved to Holyrood. The powers which lie with the EU – over areas like agriculture and fisheries – and will be coming back to the
UK are the bone of contention.

Mr Russell added: “Now there will be areas which are neither (devolved or reserved) or both and decisions will be made by UK ministers without consulting the Scottish Parliament or the Scottish Government on matters which are actually devolved. That’s unacceptable and it would lead to chaos.”

The Scottish Government wants to be part of the Brexit negotiations when matters which affect Scotland are being discussed.

UK ministers say that the Repeal Bill will give parliaments and assemblies in Westminster, Edinburgh, Belfast and Cardiff the power to drop or change them in the future.

Ms Sturgeon issued a joint statement with Welsh First Minister Carwyn Jones when the repeal was published last week, describing the legislation as a “naked power grab”.

They insisted it does not immediately return EU powers to devolved administrations and said they would not grant legislative consent from the Bill as it stands.

However, Scottish Secretary David Mundell said the legislation would result in a powers “bonanza” for Holyrood.

Scotland Office minister Ian Duncan insisted yesterday that the Scottish Parliament vote against granting consent for the Repeal Bill would cause significant difficulties and if the Scottish Government engaged in brinkmanship it would put people in jeopardy.

He said: “The First Minister will have to explain to them exactly what’s she’s going to do instead of that. It’s not good enough simply to posture.

“You need to be able to say to people who are going to be affected on the day after Brexit that they will be able to go forward and continue to do business as they do now.”

He added: “I think right now we would have significant difficulties in the body politic in Scotland if there’s no certainty of what laws will apply to Scotland after a particular Brexit moment... I suspect at that point there would be serious implications.”