At least one thing is clear as we count down to Article 50 next week. The idea that Holyrood will automatically gain the powers repatriated from Brussels after Brexit was always naive. It’s not going to happen; never was. The Scottish parliament will get some more responsibilities, but exactly what will be decided by the UK government. Holyrood will be subject to greater central regulation in order to comply with the new UK single market.
All the power that Brussels loses by Brexit, Westminster will gain. Technically, this might appear to violate the 1998 Scotland Act which only specifies those powers that are reserved to Westminster. Everything else is Scottish by default, including, on one interpretation, any powers on agriculture and fisheries repatriated from Brussels.
But the Brexiteers in charge of the UK government aren’t going to worry about fine legal distinctions like that. They see Brexit as an assertion of UK independence from the commissars of Brussels, and don’t regard Scotland as a separate constitutional entity. Powers will go to Westminster after Article 50, they will go directly to Westminster and will not pass Go or hit Holyrood on the way.
The Scottish parliament – as the UK White Paper states – only exercises devolved powers so long as they accord with European Law. After Brexit, Holyrood will exercise powers over agriculture and fisheries as it does at the moment, but it will do so, not in accordance with Brussels law, but with UK law. This is a fundamental change and the reason why the First Minister is warning Brexit may diminish the powers of the Scottish Parliament.
But the UK Government will insist that on “day one” after Brexit, nothing will actually change because the PM has said all repatriated laws are to remain the same for the time being. Brussels directives and regulations will be “cut and pasted” and instantly transformed into UK statutes.
Of course, this cannot continue indefinitely. It would be absurd for the UK to go to all the trouble of leaving the EU only to retain all of its laws intact. In future, UK laws will be changed as the UK Government sifts through all the EU directives and regulations. It may decide to allow things like hormone-treated beef, EU regulations on which currently prevent many US agricultural exports being sold in UK markets.
The UK could argue that this doesn’t actually alter Holyrood’s powers as such because they are the same as they were before Brexit – the only difference is that overall regulation is coming form Westminster rather than Brussels. And under the Scotland Act, isn’t Westminster ultimately sovereign in all instances? The UK could argue that Holyrood’s constitutional rights are unaffected and there is no more requirement for legislative consent (a Sewel motion) than there was over Article 50. The Scottish Government will dispute this interpretation, needless to say.
The material change to Holyrood is pretty obvious. If nothing else, Brexit ends the situation in which Scotland is in a sense the servant of two masters: Europe on the one hand, with its regulations and directives; and Westminster on the other which rules on reserved matters like defence, economy, welfare and so on. Now the powers are collapsed into Westminster, Scotland will be much more visibly a creature of Westminster. Moreover, Scottish agricultural subsidies are set and financed by the EU under the Common Agricultural Policy. All this will change.
The Tories are of course aware of all this, though they’ve tended to sideline the implications for devolution since the UK Supreme Court ruled in January that Holyrood had no veto power over Article 50. It was noticeable that, following the ruling, Theresa May and her ministers stopped talking about new powers.
At the Scottish Conservative Conference, the PM refused to give assurances she cannot deliver: namely that Holyrood’s powers will not in any sense be diminished by Brexit. She will try to argue that Holyrood’s powers are the same, indeed enhanced by a dusting of new powers in areas like the environment (as I explained in earlier posts). But she cannot in all honesty say that nothing will change.
Who pays the piper plays the tune, and it is Westminster, not Holyrood, that will take future decisions on agricultural subsidies. According to the Financial Times nearly three-quarters of Scottish farmers’ incomes comes from such subsidies. The UK Government has only promised to keep this level of support until 2020, and Holyrood will not decide what replaces the CAP regime.
Nor will Scotland have control of regulatory issues like GM crops. If Westminster accepts forms of genetically modified agriculture currently outlawed by Europe, Scotland will have to comply, unless there is a specific exemption. And this is not just about agriculture – Westminster will assume nearly all the regulatory powers currently exercised by Brussels.
Ms Sturgeon has always made clear that she has been fighting Brexit on two fronts; trying to keep Scotland in the single market while ensuring that Scotland gets the best deal from Brexit. The two are not incompatible. But it is naive to believe that after A50, everything will remain the same. It won’t and it can’t.