Brexit and devolution….a primer

The contentions with Brexit and devolution concern powers that are currently held by the EU and whether they should be transferred to either the UK or Scottish parliaments when we leave the EU.

The first point where I see misunderstanding is on what is meant by “powers”. So let’s tackle that first.

What’s a power?

A parliament can have a bill proposed which the members then debate and then vote on to turn it into an act of parliament. That means it becomes law, also known as legislation. This is the power of the parliament that is under discussion.

Now if the EU has passed a law in a particular area, such as on fishing quotas, then all parliaments of EU member states must accept that and so do not have the power to pass laws in that area. If a conflict does arise it can be raised at the European Court of Justice (ECJ) which oversees EU laws. The UK supreme court performs a similar function for laws made inside the UK.

What happens on leaving the EU?

On leaving the EU, the UK and Scottish parliaments no longer have to accept the laws created by the EU and can pass laws in areas previously covered by such laws. In other words, powers transfer from the EU to parliaments in the UK.

The UK parliament’s EU withdrawal bill sets out how powers will be reserved or devolved.

How many powers are involved?

There are 153 areas that are coming from the EU and for each one it needs to be decided whether it is to be reserved to the UK parliament or devolved. (I have also seen a total of 158 mentioned.)

Who decides whether the UK parliament or the Scottish parliament should get a power?

Well, that’s the problem, there is no formal mechanism for deciding this. It could be decided by rolling a dice, using a lottery machine or even a dance-off between UK and Scottish ministers. Thankfully, they decided to sit down together and negotiate it.

The Scotland Act 1998 that set devolution in law states that all powers default to being devolved to the Scottish Parliament unless explicitly reserved by the UK government. So back then, this meant the UK picked a few areas it felt should stay reserved, such as defence,  international affairs and welfare, and allowed the rest to be devolved. Amusingly, they forgot to reserve some powers over a territory in Antarctica, so for a while the Scottish parliament was able to legislate on that, but didn’t.

What has been negotiated?

As common with negotiations, both sides started from more extreme positions expecting to compromise until they reached agreement. Initially the UK government proposed that all 153 powers be reserved and the Scottish and Welsh said no. Eventually the UK government reduced this down to 24 areas to be reserved, meaning that the other 129 would be devolved with frameworks to be agreed for cooperation across the UK.

Both the Welsh and Scottish governments initially rejected the UK’s revised proposals, but after the UK government offered further amendments, the Welsh assembly voted to give consent. These amendments, which will become law in the EU withdrawal bill, specified that the UK parliament would gain a new power to reserve these areas temporarily so that post-brexit frameworks can be set up. Further, this would be for an upper limit of seven years after which they would revert to normal devolved control, and in those seven years the UK would not normally make alterations to the law in those areas without devolved consent.

The Scottish government did not agree to similar amendments for Scotland, and subsequently the Scottish parliament voted to withhold consent on the UK’s EU withdrawal bill. This means that if the UK government proceeds with the EU withdrawal bill as is, it may breach the Sewel convention.

What’s the Sewel convention?

It says that the UK parliament “will not normally legislate with regard to devolved matters without the consent” of the Scottish parliament. It is mentioned in the Scotland Act 2016 but it has no legal force, hence it is called a convention. This means that the UK’s supreme court cannot be used to resolve any disputes about it.

The word “normally” is key here. If you believe the current situation is normal then the Sewel convention applies and will be violated if the EU withdrawal bill proceeds as is. If, however, you believe the current situation is not normal then the Sewel convention will not be violated.

Who decides what “normally” means?

Since the UK supreme court cannot rule on a non-legal point then other means must be found. In many countries a written constitution could specify how this should be resolved, but the UK has no written constitution. As such the debate becomes inescapably political in nature. It can be argued having no written constitution gives the UK flexibility other countries do not have, but here it seems to be a distinct disadvantage.

What happens next?

I’ve no idea. The UK government can legally proceed with the EU withdrawal bill but that would cause big political problems with the Scottish government over devolution. Only giving 15 minutes to debate this issue in the UK parliament earlier this week was woefully inadequate but a three hour debate is now scheduled for next week. It is still possible that negotiation with the Scottish government could lead to new amendments that result in the Scottish parliament deciding to give its consent.

Is this a “power grab”?

That’s for you to decide. But I’ll make a few points.

No current powers of the Scottish parliament are being reserved and, apart from the Antarctica boo-boo mentioned above, the UK government has never asked for any devolved power to be reserved. In fact, both the Scotland Act 2012 and the Scotland Act 2016 significantly increased the number of devolved powers.

If you believe that every power currently held by the EU should be devolved completely and immediately upon brexit then, yes, you can describe the UK government as grabbing those powers. But, you’d then have to explain why you were previously happy for the EU to hold those powers.

For myself, I do not understand the complexities involved in these areas well enough to be able to form an opinion of my own, but I would hope that experts with years of professional experience will advise UK and Scottish government ministers and that they will listen. Unfortunately, there are examples of selective deafness in both governments.

Where can I read more?

My intention was to keep this post as simple as possible but this means I have had to skate over some nuanced but interesting points. For more in-depth analysis I recommend this page from the Institute for Government which has links to many clear articles on the subject.

First published by the author on his activecitizen.scot site