Brexit demands devolution rethink, MPS’ report says
●New policy for the Union outside EU is needed in the wake of power grab row
Almost 20 years since the creation of the Scottish Parliament, Whitehall officials are not properly trained to understand devolution and mechanisms for the UK’S governments to discuss vital issues such as Brexit are “not fit for purpose”, a committee of MPS has concluded. The UK government failed to consult adequately with the Scottish Government over Brexit legislation, fuelling the row over claims of a “power grab” that has ended up in front of the Supreme Court, a report from Westminster’s public administration and constitutional affairs committee has found.
The report warns that, as Brexit approaches, the current forum for talks between the governments of the UK is “no longer sustainable” and must be reformed to avoid further risk to the Union. And the report accuses the UK government of taking a “deeply unhelpful” approach on how disputed powers will be managed in future, with “no consistent or coherent rational or operational logic”.
The SNP said the report confirmed its claim that the UK government had used Brexit legislation to mount
a devolution power grab, and demanded “fundamental change” to the devolution settlement.
MPS on the committee said it was “highly regrettable that there was little consultation with devolved governments in advance of the publication of the European Union (Withdrawal) Bill, as earlier consultation could have possibly avoided much of the acrimony that was created between the UK government and the devolved governments”.
And while they have not taken a side in the row, MPS said the UK government “must recognise that the reserved powers model of devolution means that powers are devolved by default and not conferred by the UK parliament” in a significant challenge to the traditional understanding of Westminster’s sovereignty.
The findings are particularly striking given that the committee is chaired by one of the most vocal Brexiteers on the Conservative back benches, sir Bernard Jenkin.
Sir Bernard called on the government to set out clear devolution policy for the Union as the UK leaves the EU.
“Failure to do this just prolongs misunderstandings which are the basis for more conflict,” he said.
“The present machinery for developing inter-governmental relations is flimsy, and there is nothing to give the various parts of England a say. Ignoring this risks the future relations within the UK.”
Michael Russell, the Scottish Government’s cabinet secretary for the constitution, said: “It seems astonishing that 20 years on from the establishment of the Scottish Parliament, the committee says training is still required within the UK government to understand how devolution works.”
SNP MP Ronnie Cowan, who sits on the committee, said: “If the Tories had engaged with the devolved administrations
after the Brexit referendum and had a grown up conversation that allowed for input and constructive criticism, then we could be in a very different place.”
Edinburgh and London failed to reach agreement over where powers in devolved areas returning from Brussels after Brexit would rest.
It led to the Scottish Parliament refusing its consent for the EU Withdrawal Bill and passing a rival Continuity Bill that was challenged by the UK government at the Supreme Court. Following oral arguments last week, justices are to rule on whether the Scottish Parliament went beyond its competence later this year.
The row represents the first time Westminster has pressed ahead with legislation affecting devolved responsibilities against the express wishes of Holyrood.
Nearly two decades on from the creation of the Scottish and Welsh Parliaments, the MPS’ report states: “It is clear from the evidence to this inquiry that Whitehall still operates extensively on the basis of a structure and culture which take little account of the realities of devolution in the UK.
“This is inimical to the principles of devolution and good governance in UK.”
The MPS said the Joint Ministerial Committee that brings together devolved administrations and the UK government for talks needed wholesale reform if it is to function after Brexit, when the disputed powers at the heart of the row will need to be managed jointly.
They said new bodies should be set out in law, with a “clear purpose” to prevent them becoming “just talking shops to air grievances”.
In what would be a major break with existing constitutional arrangements, MPS called for England to be represented alongside ministers from the UK and devolved nations.
“The present machinery for developing inter-governmental relations is flimsy”
SIR BERNARD JENKIN
To be fair to Theresa May’s government, the Brexit referendum did come as a bit of a surprise.
For most of the 20 years of Scottish devolution, nobody thought for a moment that the UK would leave the European Union and that this would have consequential effects on relations between Holyrood and Westminster.
But, given we have had two years of dithering as the UK government decided what kind of Brexit it wanted, there was surely time to come up with a sensible compromise that respected devolution but also did not undermime the UK’S own internal market.
Instead, relations descended into a bitter row over what the SNP has described as a “power grab” of issues that currently controlled by the EU but which would otherwise be devolved.
To be fair, 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. But 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.
The UK government insists this will not happen and it will all be sorted out eventually, but it feels like ministers ran out of time to sort out a deal in advance of Brexit. The resulting constitutional ‘crisis’ – with the Scottish Parliament passing its own EU ‘Continuity Bill’ in an attempt to grab the disputed powers – is currently being considered by the UK Supreme Court.
And now we have an indication of the reason behind the chaos with a report by MPS finding that Whitehall officials don’t actually understand devolution. It was all the more surprising given the committee is chaired by Sir Bernard Jenkin, a prominent Conservative Brexiteer.
As Scotland’s Constitution Secretary Michael Russell remarked, it is an “astonishing” state of affairs and one that should be rectified as soon as possible, which will be after Brexit now. But perhaps there is a silver lining from the report. The UK government hasn’t been deliberating trying to grab powers that should be devolved. It’s simply been struggling to understand what to do.
That could be the basis for a general cooling of tensions between Edinburgh and London and a chance to find a reasonable way forward. In these turbulent times, we could certainly do with one.