The great Scotland-London wrestling match

by Luke Lythgoe | 10.08.2017

Splitting the powers brought back from the EU between Westminster and Holyrood could prove one of the most controversial elements of Brexit. Ahead of a meeting with Theresa May’s deputy Damian Green yesterday, Scotland’s Brexit minister described the so-called Repeal Bill as “a fundamental attack on the principles of devolution”, warning that the Scottish government would not support it as it stands.

The bill is designed to repeal the European Communities Act, copying and pasting the relevant EU laws (with minor tweaks) onto the UK statute book. But the SNP fears a Tory “power grab” since many of the EU’s powers – such as agriculture, fisheries and the environment – belong to policy areas devolved to Scotland in the 1998 settlement.

For Nicola Sturgeon and her party, these powers should go straight to Holyrood, not be taken back by London and doled out selectively later. For the SNP, it is in Scotland’s gift – not Westminster’s – to say which of these laws are best implemented at a national level.

The usual way of settling any overlap between devolved powers and national-level legislation is to give the Scottish Parliament an opportunity to approve the legislation in question through something known as a legislative consent motion (LCM). This procedure has proven largely successful since devolution, and the prime minister has suggested an LCM will be presented on this occasion too.

But May’s government must tread very carefully. Scotland’s SNP-dominated parliament could easily reject the LCM if members don’t feel Scotland is being adequately involved in Brexit decisions. Rather than delaying their already incredibly tight legislative schedule, the government could then choose to ignore Scottish concerns and plough on with the Repeal Bill. But this would cause long-term damage to Westminster’s relationship with the devolved parliaments, as well as risking a breach with the Scottish Conservatives’ own Ruth Davidson. It might also invite legal action from the Scottish government. Such a situation could easily destabilise the ongoing negotiations in Brussels.

Fortunately, there are ways to keep the Scots onside. The government has, after all, already promised a “bonanza” of powers returning to the devolved governments after Brexit. There are also some policies which it makes logical sense to run at a national level, making those arguments winnable for London.

Here is a brief guide to the more sensitive issues:

Agriculture – Having left the EU’s Common Agricultural Policy, subsidies for UK farmers will need to come from national or regional budgets, but devolving this could see different benefits for farmers in different parts of the UK. Animal health standards could also be devolved, and any differences could disrupt the movement of livestock around the UK. As for trade, Scotland currently has power over its exports and imports of food, animal and plant products. With the power to set external tariffs returning to the UK, this could lead to different a customs regime for Scottish produce.

Fisheries – Outside the EU’s Common Fisheries Policy, new quotas will need to be negotiated with other countries. This raises the possibility of some regional fishing industries wanting to be more protective over their stocks than others. In extreme cases it has even been suggested fleets from different UK nations could end up competing with each other where their waters overlap – for example in the Bristol Channel or Irish Sea.

Justice and home affairs – Scotland (like Northern Ireland) has a separate legal system to that of England and Wales. Might this enable Edinburgh to negotiate a separate arrangement on policies like the European arrest warrant? The Lords EU committee thinks it unlikely, concluding: “It is difficult to see how Scotland could either remain bound by specific provisions of EU law post-Brexit, or, without legal personality, negotiate a separate agreement with the EU.”

Education – The EU has little power over national education policies. However, Scotland may choose a different path on some issues. For example, it might apply separately to stay in the Erasmus+ programme if the UK fails to do so. Or it could set lower tuition fees for EU students in a bid to coax European talent away from England. It already competes with English universities by paying the tuition fees of Scottish and EU students from outside the UK.

Regional funding – Securing and spending region-specific EU funding is the responsibility of devolved governments. That funding will now be coming from the Treasury, at least until 2020. But with the government holding the purse strings, will London suddenly have a greater say on how this money is spent?

And what of this devolution bonanza Scotland has been promised? Here are some areas the SNP might push for.

Immigration – Access to European workers is critical to Scotland’s economy, and the Scottish government has already proposed a bold scenario in which Edinburgh maintains free movement and stays in the EU’s single market. On a smaller scale, Scotland already has some separate immigration policies: for example the skilled workers list for Tier 2 visas is different north of the border, and there was the now-defunct Fresh Talent scheme which let international students stay for two years after graduating.

Consumer and employment law – Devolution in consumer law would be less controversial than employment law, the divergence of which could disrupt the UK’s internal labour market.

VAT – Devolved VAT regimes within an EU member state are against EU law. One Scottish Conservative MSP has suggested this may “no longer be an aspect of European law that we need to stick with”.

Of course, the UK government won’t just have to agree these new devolution principles with Scotland – the same negotiations will need to take place in Cardiff Bay and Stormont (once Northern Ireland’s power-sharing deadlock is resolved). The devolved issues for Wales largely reflect those of Scotland, with a few exceptions such as justice and policing.

These devolution negotiations will be happening in parallel with the Brussels talks, and could get even more heated. The government must ensure one set of talks doesn’t derail the other.

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    Edited by Bill Emmott