Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

The Scotland Bill so far: Major constitutional legislation proceeding at the speed of an express train

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Plans for expanding the powers of the Scottish Parliament have developed rapidly since the Scottish referendum. Jim Gallagher takes advantage of the pause afforded by Parliament’s summer recess to take stock of the Scotland Bill’s progress, and consider the stability of increased decentralisation in the longer term.

Parliament’s summer recess is a good time to catch breath and reflect on the breakneck process of the Scotland Bill. This is constitutional legislation, but proceeding at the speed of an express train.

Express delivery of new powers for the Scottish Parliament was promised during the referendum campaign. The pro-union parties promised – in what was to become the Smith commission – to agree plans in very short order; then they made ‘The Vow’ about what those plans would contain (in, of all places, the Daily Record). The timetable demanded draft legislation before the general election, and a bill introduced immediately thereafter. All of this has duly happened.

The Scotland Bill is very similar to the pre-election draft, with changes to address points of criticism. It is faithful to the Smith recommendations: Virtually complete devolution of income tax – Check. Assignment of half of VAT – Check. Declaration of constitutional permanence for the Scottish Parliament, and legislative basis for (what we must still call) the Sewel Convention – Check. Devolving £2.5 billion of benefits – Check. So from any perspective this is major stuff.

Continue reading