This week’s meeting of minds between Scottish and Welsh First Ministers Nicola Sturgeon and Carwyn Jones offered the clearest signal yet that the UK could be heading for a constitutional crisis. But how much truth is there in the claim that the so-called ‘Great Repeal Bill’ poses a real threat to devolution in Scotland and Wales? And what prospect is there of the devolved administrations swaying the position of the UK Government?
Perhaps the first thing to note is that the two leaders’ fears are not unfounded. This is because, in the words of de-facto Welsh Government Brexit spokesman, Mark Drakeford, the post-Brexit constitutional waters are “genuinely muddy”. With no hard and fast precedents to follow, the devolved administrations are right to be on guard against any attempt by the UK Government to re-interpret the devolved settlement, trampling on the toes of Holyrood and Cardiff Bay as powers that currently reside in Brussels but fall under devolved issue-areas are passed back.
The natural preference of Carwyn Jones and Nicola Sturgeon is that these powers are passed directly to the devolved administrations, who, hypothetically, would have received this competence under devolution, had Britain never been a member of the EU to begin with. The Government’s thinking is that rather than allowing these powers to return directly to the devolved governments, they should instead effectively be held in trust in Westminster and returned where there is no need for a UK-wide approach.
The legal case
So could the government risk its second upset of the year over its Brexit plans? Unlike the Article 50 debate, the hurdle the government faces in this case is more political than legal. Though there has been some speculation that the devolved administrations could seek to escalate the row all the way to the Supreme Court, Jones and Sturgeon are on shaky ground. There is a plausible argument that the Repeal Bill threatens the ‘spirit’ of the devolved settlement but not the letter. This is because the Repeal Bill does nothing to actually change the current competence of the devolved legislatures, which have never been entitled to competence over areas that fall under EU law.
To outside observers, it might seem ironic that the nationalist and Labour voices shouting the loudest about a Westminster ‘power-grab’ have often been the most contentedly pro-European, happy to allow what they now consider their rightful powers to reside in Brussels, but unwilling to allow these powers to return closer to home in Westminster, even on a temporary basis. There is also the question of whether the devolved legislatures actually hold the capacity to process repatriated laws in such a short time-frame. Nonetheless, the consequences of the UK Government misreading (or ignoring) the mood in Scotland and Wales could still be far reaching.
The Ruth Davidson factor
For starters, it is not clear whether Ruth Davidson, popular hero of the Tory centre and deliverer of 12 new Scottish seats for Theresa May in June will give her UK leader full throated support. With Davidson seen as a potential political ace for the Tories that could help the party to de-toxify both north and south of the border, there is a growing sense both that she has May’s ear, and that she is willing to challenge the UK Tory position on Brexit. Throw into the mix speculation about a formal split between the UK and Scottish Conservatives, and soft-Brexiteer English Tory MPs could feel emboldened against their Westminster leadership.
With that said, room for manoeuvre may have been reduced as the Welsh Conservatives took no prisoners in labelling Carwyn Jones “Sturgeon’s lap dog”, illustrated in a slightly disturbing mock-up, tweeted today. Scottish Secretary, David Mundell has also argued that, far from being a ‘power-grab’, the Repeal Bill offers a “power bonanza” to the Scottish Parliament, as powers are transferred from Westminster in the future.
No good outcomes
With Jones and Sturgeon both indicating they will now seek amendments to the Bill and may encourage their legislatures to reject the UK Government’s ‘Legislative Consent Motion’, the stakes could not be higher. The UK Government must now decide whether it will use its technical legal right to ignore the lack of consent from the devolved legislatures and risk stoking nationalist sentiment in both Scotland and Wales, or if it is willing to back down and hand a humiliating political victory to Welsh Labour and the SNP. In reality, there are few good outcomes for the Conservatives, not least in terms of the party’s necessary efforts to attract SNP and Plaid Cymru voters in Scottish and Welsh marginal seats. Facing down the protestations of the devolved Governments and successfully turning the current Repeal Bill into an Act may turn out to be a pyrrhic victory for the Government.
Oliver Hudson, Grayling Wales Public Affairs