Mark Elliott, professor of public law at the University of Cambridge, takes a look at the latest clash between Edinburgh and London over the destination of repatriated powers upon Brexit.

Following a meeting with the UK Government’s First Secretary of State, Damian Green, the Scottish Government Minister responsible for Brexit-related matters, Michael Russell, has issued a short but uncompromising statement setting out the Scottish Government’s position. The statement deals in particular with the Scottish Government’s stance on the EU (Withdrawal) Bill, which was introduced into the UK Parliament just before the summer recess, and which is intended to provide a legal foundation for both the retention and amendment of EU law following the UK’s exit from the EU.

Russell’s statement reads as follows:

Today was a useful opportunity for an exchange of views between ourselves and the UK Government on Brexit and the repatriation of powers it will involve. But following today’s meeting we remain absolutely clear that, as things stand, we will not recommend to the Scottish Parliament that it gives its consent to the EU Withdrawal Bill. The bill as currently drafted is impractical and unworkable. It is a blatant power grab which would take existing competence over a wide range of devolved policy areas, including aspects of things like agriculture and fishing, away from Holyrood, giving them instead to Westminster and Whitehall.

That means that unless there are serious and significant changes to the proposed legislation, the strong likelihood is that the Scottish Parliament will vote against the repeal bill. To be clear, that would not block Brexit and we have never claimed to have a veto over EU withdrawal. But UK Ministers should still be in no doubt — to override a vote of the Scottish Parliament and impose the EU Withdrawal Bill on Scotland would be an extraordinary and unprecedented step to take.

What is now needed is a recognition from the UK Government that the bill as drafted cannot proceed. It should be changed to take account of the very serious concerns expressed by the Scottish and Welsh Governments. The current proposals are a direct threat to the devolution settlement which the people of Scotland overwhelmingly voted for in 1997. As we have made clear, we are not opposed in principle to UK-wide frameworks in certain areas — but this must be on the basis of agreement among equals, not imposed by Westminster.

Three brief comments on the statement.

First, the focus of the Scottish Government’s concern is clause 11 of the Bill. At present, EU law limits the powers of devolved institutions. The default position upon withdrawal would be that those limits would fall away. As a result, devolved institutions would acquire the power to do things that fall within devolved fields but that previously could not be done because they would have fallen foul of the EU law-related restriction on devolved competence.

However, this accrual of devolved authority upon withdrawal will not in fact occur, thanks to clause 11. It amends the devolution legislation, so that the modification of retained EU law will fall outside devolved competence. However, it will be possible, by Order in Council, to specify that the prohibition upon modifying retained EU law does not apply in relation to certain matters. The UK Government’s intention, according to the Explanatory Notes to the Bill, is that it will work with the devolved administrations to identify areas of retained EU law where no pan-UK approach is deemed necessary; those areas will then be released to the devolved bodies by the making of Orders in Council.

Second, the Scottish Government’s primary objection, judging by Russell’s statement, is not only that repatriated powers that would otherwise have ended up in Edinburgh (and Belfast and Cardiff) will be diverted to London, but that decisions about removing London’s stranglehold over such matters will themselves be taken in a way that puts the UK Government in the driving seat. Thus, while it is true that clause 11 refers to a mechanism whereby repatriated EU powers that are diverted to London can, in due course, be redirected to the devolved capitals, that process will be one that is led by the UK authorities. Hence Russell’s charge that the whole process envisaged by the Withdrawal Bill as it impacts upon devolved competence is a “blatant power grab” that eschews an approach based upon “agreement among equals”.

Third, if the Withdrawal Bill is not significantly amended, then it seems, as Russell indicates, highly likely that the Scottish Parliament will decline to consent to the Bill. Such consent, of course, is required as a matter of constitutional convention — as the UK Government has itself acknowledged in its Explanatory Notes to the Bill. Consent is not, however, required as a matter of law. And that remains so even though the relevant convention — the Sewel Convention — is now acknowledged in statute (thanks to changes made to the Scotland Act 1998 by the Scotland Act 2016). Indeed, when this issue was considered by the UK Supreme Court in the Miller case on the triggering of Article 50, the Court said that the convention remained a political matter upon which it would not adjudicate.

Unless the Supreme Court were to reconsider this position — a position it adopted in notably trenchant terms in Miller — there is therefore little prospect of any legal obstacle to the enactment of the Withdrawal Bill absent the Scottish Parliament’s consent to it. But politics, of course, is another matter entirely. As Russell rightly implies in his statement, the political implications of the Westminster Parliament overriding the Scottish Parliament would likely be very substantial indeed, particularly on such a high-stakes matter that already serves to highlight and magnify fundamental differences of opinion between the UK’s four constituent nations.

To the extent that the UK Government has any sort of ascertainable and consistent line on Brexit, it appears to revolve around the notion that “the will of the people”, as expressed in the referendum, must be honoured, and Brexit delivered accordingly. There are, however, fundamental difficulties with attempting to play that sort of trump card in order to override the kind of concerns being raised by the Scottish Government.

For one thing, leaving the EU was not the will of the Scottish people. And, for another, the referendum result — notwithstanding some politicians’ inclination to treat it as a blank canvas upon which politically expedient positions can be painted with abandon — surely cannot be taken to provide any cover, either way, in relation to the question of whether repatriated EU powers go to the devolved capitals or only to London. All of which highlights a further, and yet more profound, difficulty concerning Brexit. The referendum may have provided an answer about what the majority of those who voted wanted when it came to staying in or leaving the EU. But the referendum result simply cannot plausibly be pressed into service as an answer to the myriad questions that must necessarily be confronted now that the withdrawal process is underway in all its complexity.

At the end of the day, the UK Government and Parliament (subject, of course, to the constraints of parliamentary arithmetic) can legally have their way on what happens to repatriated power, even if any “will of the people” justification for doing so would be specious. But the UK Parliament’s legal sovereignty does not render it a monopolist when it comes to determining the acceptable rules of interaction between the several governments and legislatures that wield democratic power within a British constitution that is unrecognisable from that which existed when the UK joined the EU over 40 years ago. And in whatever other senses (positive or negative) leaving the EU may involve a turning back of the clock, it will not afford the UK Government the luxury of a 1970s-style British constitution in which power was hoarded in London. The referendum result may stand for the (questionable) notion of “taking back control”, but it leaves unanswered any detailed questions about where that “control” should reside within the UK’s contemporary multi-layered constitution.