Suddenly everyone’s talking about Brexit and ‘power-grabs’ again. It’s 25 months yesterday since SNP MPs staged a walk-out from the House of Commons over the “power-grab” of the EU Withdrawal Bill, and now it’s back. If you thought we were done with all that, think again.
What are we actually talking about here? As part of Britain’s exit from the EU, governmental powers which are currently held at Brussels return to the UK, but which parliament they return to – the devolved administrations or the UK Government as a ‘reserved’ power – is not a straightforward issue. While many of the responsibilities were agreed on amicably between the UK Government and the devolved administrations, in some key areas they remained at logger-heads, and in the end the Scottish and Welsh parliaments never consented to the EU Withdrawal Bill, which the UK Parliament pushed through unilaterally.
The new dispute centres on proposals to legislate for a post-Brexit UK internal market, which is expected to be announced before the House of Commons recess at the end of this month. There are two issues in the mix here. First is the report in the FT yesterday that Ministers want EU state aid powers to return to Westminster rather than Holyrood. State aid is one of the areas where the UK and Scottish Government have never been in agreement on over which parliament should get the power, with the FT quoting George Peretz QC, a lawyer at Monckton Chambers in London and an expert in EU law, stating effectively that UK Ministers are legislating on this because they aren’t confident they would win a legal battle over the issue with the devolved administrations.
The second issue is a report in The Guardian on Sunday which stated that the Bill will include new mechanisms which could inhibit devolved legislating. An unelected body would be established which would hold devolved bills to a “market impact test”, and a “mutual recognition regime” which would mean regulatory standards would be automatically accepted across the UK. The Guardian quoted sources in all three devolved administrations expressing serious concern over these measures, with a Scottish Government source saying if they had previously been installed it could have acted as a break on Scotland-only initiatives like free university tuition and minimum unit pricing on alcohol.
All of this takes place in a context where there is lots of talk about the Tories changing strategy towards Scotland. Rather than seeking to contain the SNP through devolving more powers, Boris Johnson’s government is instead going to pursue a “robust” approach, according to The Times, who reported last month that a new Cabinet group had been set-up by Michael Gove on the UK Government’s relationship to devolved administrations to do exactly that. If that is the case, Gove is not admitting to it. Responding to the ‘power-grab’ claim in the House of Commons yesterday, the Cabinet Office minister said: “It is the case that there are more than 100 powers that return to the Scottish Parliament as a result of our leaving the European Union, far from being a power grab it is a power surge for all of the parliaments of the United Kingdom.”
What’s going on here? It’s possible to see in these manoeuvrings a grand plan to cut devolution off at the knees, which – we should remember – was introduced under a Labour, not a Tory, government. Surveying Stormont, the Senedd and Holyrood, Gove may be thinking: ‘How is this working for us?’ Then again, it’s hardly working for Labour either, they’re only rivals for power at UK-level. And it’s not exactly clear how castrating devolution would be a political-winner for the Tories in Scotland; unless they plan full-scale abolition (unlikely), limiting the SNP’s power won’t stop Scots voting for the party at the ballot box.
It’s not necessary to see a grand conspiracy when examining Gove’s motives; it’s highly possible he just wants the power-bounty of Brexit to himself. If you are a Brexiteer like Gove, why would you want to share the spoils of your victory with Europhile Scottish nationalists? First Minister Nicola Sturgeon is on record as stating she wants to keep state aid powers closely aligned with Brussels (which looks a bit odd at this point, when the pandemic led the EU to chuck its own state aid rules in the bin, at least for the time-being). Gove will not want to have gone through the rigmarole of Brexit, including the current trade negotiations (in which state aid is reported to be an important dividing line), only to be thwarted by the SNP at the last hurdle.
Whatever the exact motive, the Tories wield the power here. They have an unassailable majority at Westminster. Power devolved is power retained – there is little other than moral force which the Scottish Government can draw on to defend itself. Sturgeon responded by saying such a manoeuvre would only lead to support for independence rising. But there, too, the UK Government hold ultimate constitutional power to block Scottish self-determination. We said back in December that anything other than a Corbyn-led Labour minority government would spell big trouble for the SNP’s constitutional authority. Once the Tories got full control of the levers of the Brexit British state, they were never likely to handle them with kid-gloves on.
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