Call for judge to oversee Brexit disputes

THE UK Government is braced for a series of constitutional clashes over the Great Repeal Bill as former first minister Jack McConnell suggested a judge should be appointed to rule over disputes between Holyrood and Downing Street to avoid a court battle.

A White Paper setting out the terms of the planned legislation, to transfer EU law into UK law, will be published tomorrow. The forthcoming bill will set in place a legal framework to end the jurisdiction of the European court once the Brexit deal is agreed.

But given the legal transfer and the repatriation of powers from Brussels will cover devolved areas, then not only MPs but also MSPs will be called upon to scrutinise and implement the changes.

This, Whitehall insiders fear, will unleash a wave of cross-border disputes, exacerbated by the UK government’s staunch refusal to agree to the Scottish Government’s call for a second independence referendum.

Senior Westminster sources made clear that Holyrood will be called upon to agree a number of so-called legislative consent motions (LCMs) in various policy areas as the repeal bill goes through the Commons and Lords.

LCMs are the means by which the Scottish Parliament agrees to Westminster passing legislation on devolved issues over which Edinburgh normally has legislative authority.

Until now, Scottish Secretary David Mundell has said he “anticipated” there would be LCMs but Whitehall sources have now made clear that as EU legislation is transferred into domestic law and more powers come back from Brussels, MSPs will be asked to grant approval for Westminster to legislate in certain areas that impact on the devolved settlement.

One source made clear the UK Government was bracing itself for a number of battles with Holyrood, noting: “We are expecting some constitutional bumps.”

Appearing before the Lords EU Committee, Lord McConnell spoke of the “polarisation” and “intransigence” of the two governments’ positions, of the “claim and counter-claim” that would result from the Brussels negotiations and stressed how there had to be transparency in the intergovernmental relations, which would mean all papers had to be made public.

The former first minister explained that where there was a dispute, then there should be independent adjudication by, say, a judge, rather than taking each constitutional disagreement to the UK Supreme Court.

“It should be possible through some sort of judicial appointment or something of that sort to have at least an independent view where there’s a dispute over the allocation of powers as a result of repatriation from Brussels,” he said.

The Scottish peer also made clear that as well as LCMs, there would have to be separate legislation at Holyrood to align EU law with Scottish law.

“The Great Repeal Bill can’t cover all of the devolved responsibilities;

‘‘ It should be possible to have an independent view where there’s a dispute over the allocation of powers

there will have to be a Great Repeal Bill in the Scottish Parliament as well and someone has to start working on that quickly,” he declared.

Lord McConnell argued that the debate on extra powers for Holyrood could come at another time and the focus should initially be on getting the right distribution of powers within the UK as a result of repatriation.

He added: “It’s possible to do all this if there is goodwill; I worry that the goodwill is already not there and if that’s the case, then that’s why transparency is required.”

Meantime, it emerged that Brexit Secretary David Davis privately met Michael Russell, the Scottish Government minister involved in the intergovernmental Brexit talks, on Monday in Birmingham. The talks were said to have been “cordial”.

The UK Government believes Ms Sturgeon’s pre-emptive move to call for a second independence poll ahead of the triggering of Article 50 has unsettled the normal intergovernmental process and Mr Davis could this week write privately to Mr Russell to set out the UK Government’s position on the main points of the Scottish Government’s Europe options paper, i.e. a rejection of them.