{"id":4726,"date":"2017-02-17T12:50:55","date_gmt":"2017-02-17T12:50:55","guid":{"rendered":"https:\/\/sceptical.scot\/staging\/?p=4726"},"modified":"2025-12-27T12:24:06","modified_gmt":"2025-12-27T12:24:06","slug":"dont-count-on-more-powers-post-brexit","status":"publish","type":"post","link":"https:\/\/sceptical.scot\/staging\/2017\/02\/dont-count-on-more-powers-post-brexit\/","title":{"rendered":"Don’t count on more powers post-Brexit"},"content":{"rendered":"\n

Many people have assumed that one side effect of Brexit will be that the powers currently devolved to the Scottish Parliament and Government will be enhanced.<\/strong><\/p>\n\n\n\n

That is because many, perhaps even most, of the powers which are currently exercised by the European Union cover areas of governmental activity which are not specifically \u2018reserved\u2019 to Westminster by the founding legislation of Scottish devolution, the Scotland Act 1998<\/a>, in its current form.<\/p>\n\n\n\n

At the moment, the Scottish Parliament cannot legislate in a way which is incompatible with EU law. After Brexit, therefore, on the reasonable assumption that the Scotland Act 1998 will be amended so as to remove that requirement for compatibility with EU law, it has been suggested that those powers currently exercised by the EU, and which are not reserved to Westminster, will then be exercised by the Scottish Parliament and Scottish Government.<\/p>\n\n\n\n

This would indeed mean a major enhancement of devolved powers, if that were to happen. Indeed, that potential for a devolution \u2018windfall\u2019 as a result of Brexit was held out by some \u2018Leave\u2019 campaigners in Scotland as another argument in support of their case, one which would be particularly attractive to nationalists and enthusiasts for \u2018devo-max\u2019.<\/p>\n\n\n\n

That conclusion is only valid, however, if nothing is done to prevent those current EU powers in non-reserved areas from devolving by default to Scotland. I do not believe that it can be assumed that will be the case.<\/p>\n\n\n\n

If the UK Parliament, as part of the UK government\u2019s \u2018Great Repeal Bill\u2019 measure decides it wishes to amend the Scotland Act to specify that all, or some, of the powers returned from the EU will be reserved to Westminster, it has the power to do that. The UK government might regard such a step as a transitional measure to put in place whilst it undertakes the massive task of gradually deciding which EU law to keep in domestic UK legislation.<\/p>\n\n\n\n

It could take the view that, as there was no serious suggestion at the time of the establishment of the Scottish Parliament that the UK would ever leave the EU, a more fundamental reassessment would need to be taken of the balance of powers between Westminster and the devolved administrations, if the EU is no longer part of the picture.<\/p>\n\n\n\n

After all, given that the devolution settlement of 1998 would have been unable to transfer existing EU powers (as it would have been against EU law to do so) to the Scottish Parliament and the other devolved assemblies, it might be argued that it was in no one\u2019s mind in 1997 that these bodies would ever exercise the powers which had been transferred to the European Communities almost a quarter century earlier in 1973.<\/p>\n\n\n\n

Will the current UK government decide to \u2018re-reserve\u2019 to the Westminster Parliament powers in all or some of the areas where the EU currently has the power to make laws \u2013 or will it allow all these powers to move seamlessly to the devolved legislatures?<\/p>\n\n\n\n

We don\u2019t have a clear idea yet, as with much of the detail of the path which the UK will travel towards Brexit. But the UK government\u2019s recently published Brexit White Paper<\/a> certainly suggests that complete onward devolution to the devolved legislatures and governments of EU competences is not at all what it has in mind. Para 3.4 of that White Paper says:<\/p>\n\n\n\n

\n

3.4 This has meant that, even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.<\/em><\/p>\n<\/blockquote>\n\n\n\n

But, note, what is said is that these rules will be set \u2018here in the UK\u2019 by \u2018democratically elected representatives\u2019. Those could of course be MSPs, or their counterparts in Wales and Northern Ireland \u2013 but that could equally well mean MPs at Westminster. And the next paragraph goes on to say:<\/p>\n\n\n\n

\n

3.5 As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before. We have already committed that no decisions currently taken by the devolved administrations will be removed from them and we will use the opportunity of bringing decision making back to the UK to ensure that more decisions are devolved.<\/em><\/p>\n<\/blockquote>\n\n\n\n

The wording is significant. The UK will \u2018have an opportunity to determine the level best placed to make new laws and policies\u2019. That could clearly be the UK Parliament, rather than the devolved administrations. Furthermore, the commitment is only that \u2018no decisions currently<\/strong> [my emphasis] taken by the devolved administrations will be removed from them\u2019. All that is said for the future is that \u2018we will use the opportunity\u2026to ensure that more decisions are devolved\u2019.<\/p>\n\n\n\n

These paragraphs certainly don\u2019t suggest a firm and unqualified intention to give Scotland all the powers currently exercised by the EU in areas which are currently not reserved to the UK under the 1998 Scotland Act. It sounds much more like a hint the UK government at the very least wants to consider the implications carefully before transferring those powers on to Scotland when they return to the UK from the EU.<\/p>\n\n\n\n

First published at European Futures<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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