“I can give an absolute guarantee that after the United Kingdom leaves the EU, the Scottish Parliament and Scottish Ministers will have more powers than they have today” – David Mundell, 1st March, 2017.
The UK Government published the Great Repeal Bill European Union (WIthdrawal) Bill 2017-19 yesterday and I’ll let you guess how long that “absolute guarantee” lasted.
(Poster: Colin Dunn)
I’m going to have a look at the Repeal Bill (as I shall refer to it for the rest of this article) but I would heartily encourage folk to read the reactions of Ian Dunt and Andrew Tickell first. They are wise, know much and I can merely summarise for them.
Why Is There A Repeal Bill Anyway?
The purpose of the Repeal Bill is to essentially formalise the “exit” part of Brexit. Once the UK leaves the EU there needs to be a mechanism to essentially stop EU law from applying to the UK and give the UK the ability to adapt or create new laws in the areas those EU laws once covered. The complication being that whilst the UK could simply repeal the EU laws that would leave a huge hole in the corpus of UK law. Vast swathes of governance would simply cease to be. The UK could then replace those laws but doing that would take years, perhaps decades, even in a parliament which had an unopposable majority and which could throw each law through the process at breakneck speed. And there is always the risk that a law could simply be missed. The courts would be rammed with cases where people ran into these pitfalls. A far more simple solution, likely the only one which is at all practical, is to “copy and paste” the extant EU law into UK law so that basically nothing changes between B-Day-1 and B-Day+1.
Wait…did I say simple?
It’s Never Quite That Simple
As both Dunt and Tickell have noted, “simply” copying and pasting a body of law as complex as the EU’s is bound to throw up all kinds of issues. Many of these laws will refer to other EU laws by name – these references would change as the UK changes those laws and may need to change anyway to make it clear that the law now being referred to is the UK fork of that law rather than the still extant EU version. The laws will also make references such as applying to “all EU members” – which the UK will no longer be – or even bizarrely “to all EU members without derogation or opt-out” – which the UK may have. (Imagine having an opt-out from your own law?)
There will be references to EU regulators and bodies such as the European Court of Justice from which the UK will have just “taken back control”. These references would have to be switched for the body’s UK replacement. Assuming the UK has realised that the body needs replaced and has actually done so by the time the law is needed. And, as Dunt noted, As of B-Day+1, we probably won’t even know WHICH regulators the UK needs until after the negotiations have determined which ones it is leaving and which it will continue to share with the EU.
Again, it would take years for the UK to fine-tooth each one of these laws and pass them back through Parliament to approve the changes even assuming they are accepted and that nothing is challenged in the courts. “Luckily”, the UK Government has a little card up its sleeve thanks to this guy.
Henry VIII Clauses
The Henry VIII Clauses are the most powerful tools in the UK Government’s hands. They are remnants of the time when the Divine Right of Kings was all the rage. Under this power, the Monarch has the right to rule by proclamation, bypassing all other forms of scrutiny or oversight, in order to amend the law – in this case by doing things like scrubbing off references to “the EU” and replacing them with “the UK”.
But, of course, our modern monarch has very little actual power these days (possibly more correctly, she merely promises to never use it) so the Divine Right has been delegated to the Prime Minister who is currently…
If the clauses are JUST restricted to fixing and patching the inconsistencies caused by the Great Copy-And-Paste then it might be OK under the circumstances. I’d much prefer, though, to see some oversight over what the patches are going to be and if it’s not practical to seek approval for every change, then a mechanism must be put in place to be able to challenge any unreasonable change.
I worry though that a government which gets used to absolute power may start to enjoy employing it. We’ve often seen mission creep happen with sweeping laws like this. Much as “anti-terrorism” laws have seen use in suppressing peaceful protest or monitoring people who don’t clean up after their dog (seriously). As Dunt notes, there are welcome safeguards, including a two year term on the period of the Henry VIII clauses, but there are also cuddly little statements which allow ministers to “make such provision as [they] consider appropriate”. This is a complete carte blanche to do whatever they like in the name of Brexit. Even the old Roman Dictators had to account for their actions after their term was over. I doubt we’ll see even that level of scrutiny from May. I fear that we’re entering a dangerously vulnerable period for British democracy.
What of Devolution?
Now here is where Brexit becomes even more contentious. First we need to remember precisely how devolution operates in the UK. When it was first designed in 1997, the new parliaments and assemblies weren’t granted a list of powers that they could use. Instead, they were technically given total power over everything except that which was explicitly reserved to Westminster. This led to one humorous example whereby it was noted that Westminster had accidentally and by omission ceded power over Antarctica to Scotland
But several powers that the EU holds (such as over fishing) are NOT reserved to Westminster. This means that when these powers are returned from the EU then they should automatically transfer straight to the appropriate devolved governments. This is, in fact, what was promised by Vote Leave during the EU referendum and the Scottish Secretary David Mundell has repeatedly promised that the Scottish Government would gain more powers upon Brexit.
But this isn’t what is going to happen now. The Repeal Bill has decided, in its wisdom, to pull ALL powers from the EU directly Westminster where they may be changed before (maybe…presumably if we play nice) being sent back to the devolved parliaments.
The excuse for doing it this way is that the UK Government has to seek a deal which works for the whole of the UK.
And if that doesn’t sound to you like “we reserve the right to screw over fishers and farmers again and sell them out in the name of a “very, very powerful trade deal” even after relying on their votes to win the referendum” then good luck to your optimism over the next few years.
Further, the bill states that Scotland could not legislate on powers in a manner which is “inconsistent” with the UK position. Again, as Dunt says, if the UK decides to slash animal welfare law then Scotland could not unilaterally decide to maintain EU minimum standards. For reasons such as these, both the Scottish and Welsh First Ministers have signed a joint statement opposing the Bill (Northern Ireland currently remains without a government following the recent collapse of power sharing).
What Next?
Who knows. On Monday we see the next formal meeting between the UK and EU negotiation teams and it is expected that now that the introductions have been made, the real talks will begin. The problem is that the UK still has very little idea what kind of Brexit it actually wants and the whole thing is still looking like an almighty mess. As I wrote about in a previous post, just imagine if the 2014 indyref campaign had been conducted like this…
Maybe the UK will get its act together in the end, maybe it’ll be hammered into shape by further capitulations to an increasingly bemused EU team who are standing firm to a line they basically wrote a year ago. Not quite the “Taking Back Control” that I’m sure many were hoping for.
The next step for Scotland though is to start preparing for the Brexit Bill as it takes shape. We can’t know how it’ll pan out in detail quite yet but I hope the Scottish Government will be scrutinising the documents coming out from both sides now and working out the limits of the possible. We must be prepared for eventualities and we must be ready to challenge the UK Government on anything and everything which may adversely affect Scotland. “Taking Back Control” cannot be allowed to mean a Dictator in Number 10 divinely proclaiming which bits of our country they can sell off in a desperate attempt to protect their own career from a disaster of their own making.
The Common Green 
It seems to me if the FM doesn’t sign the Repeal Bill Westminster could simply go on as if it had happened. We see how meaningless the Sewell Convention was/is, Barnett is just up to the UK government.
Devolution was never intended as a route to real government, it might not matter if the FMs oppose the Repeal Bill.
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This has been coming for some time. From a British establishment perspective, devolution has gone terribly wrong. It was never the intention that Scotland should have a real parliament. It was never envisaged that we would have a real government and real political leaders treading the world stage alongside UK leaders rather than walking a respectful distance behind.
It was never part of the plan that Holyrood should become the primary locus of Scottish politics. Nobody foresaw the extent to which devolution would result in Scotland developing a distinctive political culture.
The British state does not happily tolerate rivals. Challenges to the supremacy of its political elite are regarded as an affront to the natural order. The British establishment fears and hates the SNP. Democratic dissent poses no problems. The British political system has evolved to be able to easily withstand the action of popular movements. What can’t be crushed is absorbed. But a popular movement with access to effective political power is a different matter. The SNP is a threat because it provides a progressive independence movement which would otherwise be ineffectual with an agency able to challenge the British political system from within.
The combination of the Yes movement, the Scottish Parliament and the SNP represents a very real threat to the structures of power, privilege and patronage which define the British state.
It wasn’t supposed to be this way. Contrary to popular belief, the electoral system for the Scottish Parliament was not designed to prevent the SNP gaining power. It didn’t have to be. It only had to be designed to prevent any single party from gaining power. This should have ensured that some combination of the three British parties would always be able to keep control. That all went wrong in 2007. Ever since then, the British establishment has been desperately seeking a way to retrieve the situation. The SNP is the lever. The Scottish Parliament is the fulcrum. The Yes movement is the force. Removing any one of these from the equation will end the threat.
The full might of the British state’s formidable machinery has been brought to bear on the Yes movement and the SNP. Both have been targeted by a massive and totally unprincipled propaganda campaign such as is seldom seen in peacetime. The SNP has been the main target, because it’s easier to attack a party than a principle. But this onslaught has not been effective. That troublesome trio of components remains intact. Despite the best efforts of an almost universally hostile media and a devolution process which has been transformed into a weapon against the SNP administration, the threat to the British state persists.
Brexit offers an opportunity to take out one of those vital elements – the Scottish Parliament. The nature of the devolution settlement is such as to make Holyrood vulnerable to the actions of a UK Government desperate, stupid and unscrupulous enough to use its powers to effectively cripple Scotland’s democratically elected parliament. What we see in the European Union (Withdrawal) Bill is the playing out of a process which many have anticipated ever since it became evident that the No vote in 2014 had not been the death blow to both the SNP and the independence movement that the British establishment had hoped for.
Surely nobody now can be in any doubt about the malign intent of the UK Government. A government that has been repeatedly and emphatically rejected by the people of Scotland is now set upon ripping the heart out of the Parliament that is elected by the people of Scotland. Every citizen of Scotland, regardless of their views on the constitutional issue, must now ask themselves whether they are prepared to tolerate this. And those who continue to insist on preserving the union even at the cost of our Parliament and our democracy must face some hard questioning.
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Agree but I’m inclined to think that people won’t really react until it affects them directly and personally.
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Which is why we have to shove it right in their faces. Make it personal. It’s THEIR parliament that’s under attack.
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‘Scottish executive” is far more appropriate than “scottish govt”. The media of emphasise the “govt” as it reinforces the myth that Holyrood has power to counter the business cycle.
They will of course be largely silent and uncritical of the uk govt over this
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