Another constitutional clash is boiling up in the UK. This time the main parties include the devolved administration in Scotland and Westminster. Disputes between the two are not that uncommon, but the nature of the political and legal conflict which has slowly arisen is of great significance.
In March this year the Scottish Parliament passed The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill. This ‘Continuity Bill’ is designed to make provision for Scotland in relation to the UK’s withdrawal from the EU.
More specifically, the Bill aims to ensure that powers currently exercised by the EU are transferred to the Scottish government where they would otherwise lie within its legislative competence.
The problem with the Bill, however, is that it directly conflicts with the provisions of the EU (Withdrawal) Bill, a piece of legislation making its way through the Westminster Parliament. As such, Theresa May’s government has referred the matter to the UK Supreme Court for a definitive ruling on the legalities of the actions taken by the Scottish administration.
This issue exposes one of the many contentions with the Withdrawal Bill, including its ‘Henry VIII powers’ and the omission of provisions in relation to the EU Charter. Specific to this case though is clause 11 of the Bill. This alters the wording section 29 of the Scotland Act 1998, the consequence of which significantly changes the legislative competence of the Scottish administration.
The effect of the clause is that Scotland, post-Brexit, would not be able to “modify or confer power by subordinate legislation to modify retained EU law.” Accordingly, what would have otherwise been within the administration’s realm, such as agricultural support and fisheries management, will be under the control of Westminster.
This therefore explains the reasoning behind Scotland passing its Continuity Bill. The effect of clause 11 has been perceived as a “power grab” by the UK government. The First Minister of Scotland, Nicola Sturgeon, has been particularly critical of the Withdrawal ever since it was introduced to the House of Commons last year.
Throughout that period the Scottish government has in turn fiercely stood by its position. This ferocity has now produced section 11 of the Continuity Bill, which allows Scottish ministers to amend or deal with incorporated EU law post-Brexit where there may be deficiencies or other insufficiencies. Alas, a clash commences, that between clause 11 of the Withdrawal Bill and section 11 of the Continuity Bill.
Scotland’s case is thus self-evident: Sturgeon and others have argued that in order to remain consistent with the constitutional arrangement for the devolved administrations of the UK, certain powers must reside with the Scottish government after Brexit. Mike Russell, Scotland’s Minister for Brexit negotiations, argues that the Withdrawal Bill would restrict Scotland’s powers without their consent, of which would contravene the Sewel Convention.
The UK governments’ counter centres around the its supposed duty to uphold the UK’s internal market. David Lidington, Minister for the Cabinet Office, has argued that “[b]y maintaining legal UK frameworks where strictly necessary, we retain our ability to act in the national interest when we need to.” As such, powers that would reside with the devolved administrations should instead reside with Westminster insofar as it enables the integrity of this so-called internal market of the UK.
But this position is somewhat questionable. The idea of a UK internal market is one that has only really arisen after the Brexit referendum. This idea, as attractive as it may be politically, is more complicated than one may believe. Any internal market is not just about trade. They also impose universal policies structuring multiple economies and societies.
This kind of system is not entirely clear to decipher from the arrangement of the UK and its devolved administrations. Each of the administrations are afforded certain regulatory and tax powers of which they can exercise on their own accord. This highlights a degree of autonomy among those administrations that reveals a lack of centrality in many of the important policy areas which would be significant in shaping an internal market within the UK.
The UK government has thus insisted that, while maintaining an internal market, Westminster subsuming many of the powers coming back from Brussels is also integral to the UK negotiating trade agreements with other countries post-Brexit.
This is perhaps a stronger argument, which says that maintaining a unified market would allow the scope of the benefits of any such trade deal to be wider. Having regulatory divergence could allow the devolved administrations to almost cherry-pick parts of a potential trade deal so as to consume its benefits without taking on its burdens.
Yet, while there may be some merit to this point, the UK government is yet to confront the constitutional obstacles that it has placed in its own way. The Sewel Convention, and arrangement of the devolved administrations are certainly included. But now that the issue has been taken to the Supreme Court, it will be interesting to see what the decision is.
The Court has ruled before that the Sewel Convention is merely political and thus cannot be subject to scrutiny by the judiciary. Thus, the likelihood of a Scotland win might be faint, but the decision, whatever it is, will have far-reaching implications for many years to come.