The Scottish Parliament looks like being the first institution on the Brexit casualty list. After last week’s landmark ruling by the Supreme Court, Westminster has rightly been restored to its proper place at the very apex of the British constitution, source of all legislative authority. However, in the process, Holyrood’s lawmaking powers have been revealed as tenuous and enfeebled, subject to review at the whim of the Brexit Government. There’s no veto on Article 50. You’ll have had your legislative consent.
So are the Lords Supreme just another Parcel o’ Rogues? Not at all. Scotland should thank their Lordships for making crystal clear what many suspected: namely that the Sewel Convention, under which Westminster supposedly refrains from ruling on devolved issues without the consent of the Scottish Parliament, is froth, mince, tripe,baloney and codswallop. It has no legal force. The clause in the 2016 Scotland Act, which supposedly placed Sewel on a “statutory footing”, was just there to fool the natives into thinking their Parliament”s powers were “entrenched” and irreversible. Holyrood’s legislative powers are clearly and explicitly on loan from Westminster and liable to be over-ridden as and when the UK Government chooses.
Notice has been served on Scotland that further wide-ranging changes to Holyrood’s powers could be on the way by diktat from the UK Government. This will be in the wake of the legislative upheaval that takes place when Britain is ripped out of the EU. Almost anything can and probably will be altered by the Brexiters in charge at Westminster as it puts together a new single market and sets all the laws that govern it. Holyrood is supposed to exercise primary lawmaking powers, but it is a house on shifting sands, without any kind of sovereign or legislative authority. After this week, Holyrood is no longer a parliament in anything but name.
No one will believe a word UK ministers say in future about the powers and constitutional standing of Holyrood; not that many of us did in the past. Which brings us to the Scottish Secretary, David Mundell’s promise that the Scottish Parliament will get legislative consent on the Great Repeal Bill. Er, maybe. Forecasts of a raft of new powers coming “naturally” to Holyrood after Brexit – fishing, farming and so on – should be regarded as about as dependable as the claims made about the Sewel Convention.
Mr Mundell made clear last week that the Great Repeal Bill, which repeals and replaces all the multitude of EU laws, is still a matter for the constitution and therefore a responsibility reserved to Westminster. What will probably happen is that Holyrood will be offered, in the Brexit process, some new responsibilities, perhaps on the environment or workers rights. Legislative consent will perhaps be offered on the whole package; a legislative fait accompli.
But these powers will be on loan from Westminster. Anything important will be reviewed by Whitehall and ruled upon by the UK Government. Financing the replacement for the Common Fisheries Policy or the Common Agricultural Policy will naturally be reserved to Westminster.
There will be thousands of regulations and directives, petty and important, repatriated from Brussels and the intention is that these will be translated automatically onto the UK Statute Book. This is in the interests of regulatory continuity. But soon the UK government lawyers will start sifting through them all and deciding what to keep and what to discard. It is expected that the Prime Minister will resort again to executive powers to alter many of the laws on matters like the environment or food safety, without consultation. This is so called “delegated legislation” and the Supreme Court will not reject it.
From a Scottish point of view, the Great Repeal Bill is double trouble. Scotland will lose economic privileges and valuable inward migration, by leaving the EU, which is all that has been keeping our population from dwindling. It’s clear that the repatriation of European law could also lead, without consent, to drastic changes in the Scottish Parliament’s remit and purpose. Since all of Holyrood’s laws since 1998 have had to be in accordance with the European law, this could have profound consequences. Once that authority is ended, everything is suddenly up for grabs.