Rachel Allison explains the uncertainty about post-Brexit devolution settlements and why the Welsh and Scottish Governments no longer agree.
Yet again devolution is the issue of the day for Brexit.
Yesterday the government was set to announce its amendments to the EU withdrawal bill which were designed to settle the dispute over the devolved powers. (For background to this issue please see my previous blog). But before it was able to announce these the amendments the Scottish Government broke the press embargo to make a statement saying that it would not be accepting the amendments put forward by the government.
What is interesting about this situation is that the Welsh Government has agreed to the amendment and this is the first time the devolved governments have not spoken with a unified voice of the issue of Brexit and clause 11 of the EU Withdrawal Bill.
What is the government’s amendment?
The amendment basically returns the majority of the powers that resided in the EU to the devolved governments, apart from the 24 areas where the UK government wants to retain powers temporarily. However, the amendment states that if the UK government wishes to change anything in these areas it must consult the devolved governments.
If the devolved governments don’t give their consent to the changes and the UK government decides to continue anyway, they must present a report to both Houses of Parliament explaining why they have come to this conclusion. This report must also contain a statement from the devolved administrations explaining why they did not support the change.
Parliament is the backstop which makes sure the government doesn’t abuse its power. There is also a so called ‘sunset clause’ which stipulates when the powers will be returned to the devolved governments.
Why are the devolved governments divided?
Up until this point, the Scottish and Welsh governments were united in opposition to the original clause 11 and the amendment the government tabled and then withdrew at committee stage in the House of Lords. However, politics now comes into play. The Welsh and Scottish governments have different political agendas because of the parties who are in charge.
Carwyn Jones and Nicola Sturgeon
The Scottish Government wants consent on all legislation tabled which relates to the 24 area[1]https://www.gov.uk/government/news/uk-government-publishes-analysis-on-returning-eu-powers where the UK government has temporary powers. This would in effect give them a veto on this legislation. This would involve changing the devolution agreements and goes further than the devolved competence by giving Scotland the power to legislate in a way that could impact the whole of the UK.
The Welsh Government on the other hand are happy with the amendments, with the Finance Minister saying that there had been compromises on both sides but there was agreement that UK wide frameworks were required for the operation of internal markets[2]http://www.bbc.co.uk/news/uk-scotland-scotland-politics-43882461.
The different parties who govern the nations have difference stances on devolution. The Labour Party, which governs Wales, is strong on devolution but is a unionist party and so it is more willing to have powers temporarily residing in Westminster as long as there is a sunset clause and a backstop. While in Scotland the SNP, who as the name suggests, is a party of independence, not a party of devolution. Therefore, it is wary of Westminster having any more powers to make changes in Scotland. Furthermore, unlike Wales, Scotland voted to remain in the European Union and, therefore, the SNP has a mandate to try and keep the post-Brexit situation as close to the status quo as possible.
So what happens now?
The UK government is open to more talks with the Scottish Governments but has set a deadline of the final reading of the EU Withdrawal Bill in the House of Lords which will be mid-May. If an agreement is not reached by this point then there is a possibility that the Scottish Government will have to fall back on the Continuity Bill which is currently being passed through the Scottish Parliament. This legislation is currently being challenged by the UK Government in the Supreme Court[3]http://www.bbc.co.uk/news/uk-scotland-scotland-politics-43742208, however, and could be overturned.
The UK governments amendment may still be tabled at the Report Stage in the House of Lords but without Scotland mentioned. Or we might have to wait for another agreement to be formed and presented at the Third Reading. But after months of uncertainty a statement which causes more uncertainty is all that has been released and this complicated issue is still yet to be resolved.
