Devolution dealing

At the start of the month the EU Withdrawal Bill passed its Commons vote – the first step in the legislative process of taking the UK out of the EU. Whilst the Brexit process is primarily a matter for Westminster, the consent of the devolved administrations, Scotland and Wales, is still sought. As part of the repeal, many powers that are currently reserved to the EU will be devolved to the Scottish and Welsh parliaments. However, a dearth of detail on what these powers will look like has put the Scottish Government on the offensive.

After an initial attempt to use Brexit as justification for a second independence referendum met heavy resistance, First Minister Nicola Sturgeon has re-focused her attention on ensuring the maximum numbers of powers are devolved following Brexit. Unified by their displeasure of May’s £1bn deal with the DUP, Sturgeon has joined forces with Welsh First Minister Carwyn Jones to present a united front in support of further devolution, both accusing the UK Government of attempting a “power grab”.

In a joint letter to Theresa May, the First Ministers set out their 38 proposed amendments to the EU Withdrawal Bill – threating to withhold legislative consent if the bill is not “substantially amended”. The Scottish Government also took the step of publishing a list of 111 powers it believes are in danger of remaining at Westminster, which they want to see devolved immediately. The current proposal in the Bill are that powers which are not reserved but which are exercised in Brussels, such as farming and fishing laws, will be repatriated to Westminster, before a decision is taken over which powers should be devolved.

Despite pressure from the devolved administrations, No.10 has remained resolute over the issue, and further talks between the UK and Scottish Government yesterday over the repatriation of powers ended in stalemate. In response to the demands from Edinburgh and Cardiff, the UK Government have stressed that the devolved administrations will receive more powers, whilst avoiding any specifics over what these powers will be. Painted by opponents as the beginning of the power grab, the UK Government contend they are simply seeking to protect the internal UK market, and avoid creating differentiated regulations in areas where a common UK approach would be more efficient.

Whilst the Scottish Government has little direct control over the Brexit process, it is eager to appear to the Scottish electorate, which voted 62% Remain, that it is engaged in the process. To this end, Sturgeon has been successful at leveraging what little influence she has. By building a coalition with the (Labour-run) Welsh Government she has elevated her negotiating position above party interest, making the issue about the principle of devolution. Legally, Westminster does not need legislative consent from either the Scottish or Welsh parliaments for the Withdrawal Bill, but to proceed without it would feed perfectly into the narrative of a UK Government that is happy to steamroller the democratic will of the people of Scotland.

Aware that such a move would stoke nationalist sentiment, May is unlikely to adopt this hard-line approach – eager to avoid a devolution dispute when the fate of her Repeal Bill is far from guaranteed. With the opening positions for the negotiations well established on both sides, expect to see a more constructive approach to negotiations moving forward. Indeed, the most recent debate on Brexit in Holyrood was the most civil to date, and the Scottish Conservatives have since agreed to review the Scottish Government’s amendments to see if there is anything that they can support. Common ground is unlikely to be found on all issues, but the move perhaps signals a desire to take the negotiations beyond rhetoric and towards an agreement that would see the Scottish Government support a legislative consent motion.

Questions remain over whether the intervention by the Scottish Conservatives is a deliberate step towards reconciliation by May, or is simply a delegation of responsibility borne out of indifference to the negotiations, which represent little more than a distraction to the PM. The outcome of the next round of talks between the Scottish and UK Governments will be revealing. Concessions from both sides would represent significant progress, but further entrenchment is certainly not out of the question.

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