Category Archives: Scotland

Britain, Government, Politics, Scotland, Society

Brexit and the devolution settlement

BREXIT

For most of the two decades following Scottish devolution, nobody would have anticipated for a moment that the UK would be leaving the European Union or that this would have consequential effects on relations between Edinburgh and London.

But, given we have had two years of dithering as the UK Government decided what kind of Brexit it wanted, there was surely a time when a sensible compromise could have been delivered that respected the devolution settlement and one that did not undermine the UK’s own internal market.

. See also Scotland’s EU Continuity Bill now being tested in Supreme Court

Instead, what we have witnessed is relations descending into a bitter row over what the SNP has described as a “power grab” over issues that are currently controlled by the EU (but which would otherwise be devolved).

In the context of the arguments, both the UK and Scottish Governments had a point. Westminster wants to make sure the UK doesn’t leave the wealthiest single market in the world and end up with further sub-divisions inside the UK. Yet, it’s not unreasonable for the SNP to be concerned that matters which are supposed to be devolved might end up being controlled in London. Whilst the UK Government insists this will not happen and that powers transferring from the EU will all be sorted out eventually, it does feel like ministers ran out of time to sort out a deal in advance of Brexit.

What has transpired since is the potential start of a constitutional crisis. The Scottish Parliament passed its own Continuity Bill in an attempt to safeguard the disputed powers of which the bill’s legitimacy is currently being considered by the UK Supreme Court.

An indication of the reason behind the chaos has emerged in a report by MPs that says Whitehall officials don’t actually understand devolution. This is all the more surprising given that the committee is chaired by Sir Bernard Jenkin, a prominent Conservative Brexiteer.

Scotland’s Constitution Secretary Mike Russell remarked it is an “astonishing state of affairs” and one that should be rectified as soon as possible (which will only happen after Brexit now). There is perhaps, though, a silver lining that stands out from the conclusions of the report, in that the UK Government hasn’t been deliberately trying to grab powers that should be devolved. It’s simply been struggling to understand what to do.

Might this just be the basis for a general cooling of tensions between Holyrood and Westminster and a chance to find a reasonable way forward? In these turbulent times, that would certainly help.

Standard
Britain, Economic, European Union, Government, Politics, Scotland, Society

Treasonous myths of the Brexiteers’

BREXIT

JUST as an alliance with the EU is important to the UK, European immigrants are also vital to the British economy.

Many people will remember the insidious campaign during the EU referendum debate in 2016 of Nigel Farage standing in front of a poster showing a queue of refugees with the slogan: ‘Breaking point: The EU has failed us all’ – an image that was rightly compared to Nazi propaganda – while others were allowed to peddle the myth that EU immigration had helped to cause austerity. It must surely be a matter of profound regret among leaders of the Remain campaign that they allowed the effects of immigration to be so utterly misrepresented in the run-up to the Brexit vote.

Since that fateful day, various employers appear to have woken up to the serious risks posed by a shortage of labour if the UK leaves the Single Market and ditches freedom of movement (as Theresa May insists will happen).

The latest sign of trouble comes from our schools, with the number of teachers from other EU countries – like Greece, Poland, Spain and Ireland – applying to work in Scotland “falling off a cliff”.

In 2017, some 186 teachers from the EU sought registration with the General Teaching Council for Scotland, but so far this year just 14 have done so. This comes at a time of teacher shortages with some 700 vacancies in Scotland at the start of the year.

Nine out of ten UK employers report they are struggling to recruit staff with the skills they need, threatening the ability of the UK economy to compete. Wages could rise as employers are forced to compete for a smaller pool of available workers, but this may prove to be a short-lived boon if firms with fewer skilled staff and higher costs start to lose business and trade to their EU rivals.

The economic chaos that could be caused by a no-deal Brexit could further exacerbate what is already an alarming situation.

What is equally important is the attitude adopted by our elected politicians towards the EU, described recently by President Trump as a “foe” while he cosied up to Vladimir Putin of Russia.

In a further twist and wholly unacceptable language, Conservative MEP David Campbell-Bannerman has claimed the Treason Act should be amended to apply to “those in future actively working undemocratically against the UK through extreme EU loyalty” because, “like extreme jihadis”, they were “seeking to destroy or undermine the British state”.

We should have welcomed immigrants to this country by freely acknowledging the massive contribution they have made to our society, but instead we have turned them into scapegoats for austerity. What a pitifully poor and degrading accusation.

Now there is a serious risk of another dangerous myth gaining a foothold in the public’s imagination – that the friendly democracies of the EU are in some way our enemy.

BRITAIN will be unable to forge a new trade deal with fast-growing Pacific countries unless it makes a clean break with the EU, a report has warned.

The Government’s White Paper on Brexit says the UK will “potentially seek accession” to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) after leaving the EU.

The 11-member organisation, which aims to eliminate 98 per cent of all tariffs, is seen as a major potential growth market.

But a study by the Policy Exchange thinktank warns that Theresa May’s Chequers deal could make membership impossible.

The controversial deal commits the UK to following a “common rulebook” with the EU on goods and farm products, limiting the room for manoeuvre with trade negotiators.

The report warns that joining the partnership would require the UK to have more flexibility over its regulations.

Report author Geoff Raby, a former Australian ambassador to the World Trade Organisation, said: “By aligning UK policy to EU policy on agriculture and manufactured goods, the White Paper will constrain the opportunities that the UK has to pursue an independent trade policy.

“Without being able to participate fully in the agricultural and manufactured goods dimension it is most unlikely that the UK would be able to join, but if it did it would not be able to get the full benefits.”

The Chequers deal has caused uproar in the Conservative Party and prompted the resignations of Boris Johnson and David Davis.

The PM has insisted that it will not constrain the UK’s future trade policy. She told MPs this month: “We specifically looked at whether the plan that we were putting forward would enable us to accede to the comprehensive and progressive agreement for Trans-Pacific Partnership, and it will.”

But the report threatens to reopen the row over the potential impact on trade of the Chequers agreement. Donald Trump has warned that the restrictions would “kill” hopes of a US trade deal – although he rowed back following talks with Mrs May.

The CPTPP’s members include Australia, Canada, Japan, Mexico and New Zealand, with South Korea, Indonesia and Taiwan among those set to join.

Policy Exchange chairman Alexander Downer, the former Australian high commissioner to the UK, said Britain would be “a welcome addition” to the bloc, which would give it “unfettered access to many markets that represent a large part of the future of the world’s economy”.

Standard
Government, Legal, Scotland

Scotland’s EU Continuity Bill now being tested in Supreme Court

SCOTLAND: BREXIT

THE highest court in the UK has been urged to strike down the SNP’s Brexit legislation because it relates to international powers which are not devolved to Holyrood.

A legal battle between the Scottish and UK Governments is underway in the Supreme Court. It could have huge ramifications for Theresa May’s Brexit plans.

The UK’s top law officers argued that the SNP’s Continuity Bill, which has been passed by a majority of MSPs in the Scottish Parliament, “cannot stand” because it is “fundamentally inconsistent” with the law.

But the Scottish Government’s top legal officer insisted that the Bill was “carefully framed” not to cut across EU laws and was modelled on the UK Government’s Withdrawal Bill.

The case was called after the SNP opted to press ahead with its own Brexit legislation following its decision to refuse to give consent to Mrs May’s Bill.

The legislation was fast-tracked through parliament, despite Holyrood’s Presiding Officer Ken Macintosh concluding that it was “not within the legislative competence of the parliament”.

The Supreme Court is considering the issue after UK law officers asked for a judgment. The case is continuing, with a verdict expected in October.

Presenting the UK case, Advocate General for Scotland Lord Richard Keen told the seven judges considering the matter that “the Scottish Bill as a whole cannot stand”.

He told the panel, including Supreme Court president Lady Hale and deputy president Lord Reed, that the Bill “impermissibly modifies the UK Act on withdrawal from the EU” and is “fundamentally inconsistent” with legislation passed by MPs.

He argued that the Continuity Bill was “directly inconsistent with the UK Act at the most basic of levels” and that “the two simply cannot stand together”.

The UK law officers’ written case states: “The Scottish Bill is not law because it relates to the reserved matter of international relations as defined in Section 7 (1) of Schedule 5, and is therefore outside of competence.”

The UK Bill was given Royal Assent on June 26 and became the European Union (Withdrawal) Act 2018.

The law officers say that the Scottish Bill was passed “without knowledge” of the outcome of negotiations between the UK Government and the EU.

In his written case, Scottish Lord Advocate James Wolffe said: “The purpose of the Scottish Bill is to promote legal certainty by making provision for the continuity within the domestic legal system of existing EU-derived law upon and following withdrawal.”

HOLYROOD’S Brexit Bill is “perfectly practical”, the Lord Advocate told the UK Supreme Court as the Scottish Government continued its unprecedented constitutional battle with Whitehall.

In the second and final day of the court hearing in London, James Wolffe rejected the UK Government’s main contention that, by Passing Edinburgh’s Continuity Bill, the Scottish Parliament was in some way trying to cut across Westminster’s authority in international relations.

He argued that the Scottish bill was not incompatible with EU law, which was based on the principles of “legal certainty and continuity”.

The Lord Advocate said the Holyrood legislation only impacted on the “domestic legal order” and so could not affect the UK’s negotiations with Brussels.

Crucially, Mr Wolffe told the court the Scottish legislation had been passed by MSPs several months before the UK Government’s flagship EU Withdrawal Bill became law, noting: “It was not intended to modify the UK bill and could not do so.”

On the first day of the hearing, Lord Keen of Elie, Advocate General for Scotland, leading for the UK Government, argued that “any reasonable consideration” of the Scottish bill and the UK act showed the former sought to modify, that is undermine, the latter and so the “two simply cannot stand together” as they produced two “dual but inconsistent regimes” in respect of retained EU law.

But the Lord Advocate’s points were supported by Michael Fordham for the Welsh Government, who claimed the UK Government’s contention that the Scottish bill would cut across Whitehall’s reserved powers on international relations was “wrong and incoherent”.

He said the UK’s argument that devolved administrations could not legislate in devolved areas currently managed by the EU because they touched on international treaty negotiations was an “extravagant claim which has very alarming logical implications”.

He explained that this would have the effect of restricting the powers of devolved parliaments even after Brexit and EU law was transferred on to the UK Statute Book.

John Larkin, the Northern Irish Attorney General, also argued that the Scottish bill was “within the legislative competence of the Scottish Parliament”.

But, in response, Lord Keen suggested it was “unjustified” for devolved governments to expect that all devolved powers should be handed over after Britain left the EU because, when the devolution settlement was drawn up 20 years ago, no one could have predicted Brexit.

He said it was “not open to the Scottish Government and the Scottish Parliament to assume that no new legislative constraints” would be introduced because of Britain leaving the EU.

He claimed the Continuity Bill was “fundamentally inconsistent” with the purpose of the UK act and that the confusion over which Parliament had jurisdiction over which European regulations would result in the undermining of the UK Government’s Brexit strategy.

Seven judges of the Supreme Court, including two Scottish judges, will now spend the summer considering their ruling. If they were to find for the Scottish Government, then this would mean the Continuity Bill would receive royal assent and become law.

However, this would mean there would be two competing pieces of legislation on the statute book, which would likely result in the matter returning to the Supreme Court to determine which act took precedence.

Standard