Great Repeal Bill: Putting the Scottish parliament in its place
The whole Brexit process has illuminated Scotland’s lack of sovereignty.
A referendum was held by a political party we consistently reject at the ballot box. The result of the referendum was the opposite of what we wanted yet we are being forced to live with the consequences.
However, things are about to get a whole lot worse in that respect.
Firstly, the Scotland Act will need to be amended as the Scotland Act stipulates that laws made by the Scottish Parliament must be in line with EU law.
That change probably makes sense but it isn’t the only thing that Westminster is likely to change about the Scotland Act.
Some competencies that are currently controlled by the EU are currently set to repatriate to Scotland post Brexit. These include control over agriculture, fishing within Scottish waters, public procurement and environmental law. In contradiction to what we were being told by the Brexiteers in the run up to the EU referendum, the UK government wants to take some or all of those competencies to Westminster after we leave the EU.
Scotland doesn’t want Brexit at all but, failing a Yes vote in a second referendum, we will have no choice but to try to make the best of it.
If we are forced out it is unlikely that the Scottish parliament will want any competencies to be taken by Westminster. The Sewel convention states that the UK government should ‘normally’ seek the consent of the Scottish parliament before making changes to Scottish law. However, we now know via the Supreme Court that the Sewel convention is legally toothless.
So, if Scotland resists we may find ourselves in a position in which the UK government just changes the Scotland Act unilaterally. This may be legal but could be politically explosive and should annoy anyone that cares about the rights of the Scottish Parliament.
Then we have the Great Repeal Bill which is the mechanism designed to repatriate EU law to the UK. The bill has two main stages.
The first involves primary legislation that will go through the normal parliamentary process. Essentially, at the point of Brexit all EU law that is on the UK statute books will become UK law. That part isn’t particularly controversial.
It is the second part of the bill that is more terrifying for those who believe Scotland should be sovereign.
Once EU law becomes UK law, large swathes of it will have to be changed in order for it to work. For instance EU law refers to EU institutions which we will no longer be using. The exact nature of our relationship with Europe will evolve during the negotiations and this will have to be reflected in law. Furthermore, the UK government will want to make all sorts of ideological and policy based changes to EU laws as they are repatriated.
Problem is they are going to do so using so called Henry The 8th Clauses.
This means that the primary legislation can be altered by secondary legislation. This secondary legislation doesn’t need to go through parliament. So, essentially, the UK government can potentially change Scottish laws without scrutiny at Westminster and without consulting Holyrood.
So, Brexit has exposed a situation in which the UK government can take competencies from the Scottish Government without consultation. They can also alter what laws remain controlled by Holyrood without any oversight in Westminster or input from the Scottish government.
So much for a partnership of equals.
No doubt the Scottish government will make a lot of noise about such a situation. They may even take legal action but under the current law the UK’s actions are most likely by the book.
I can’t think of many countries that would accept this lack of Sovereignty. The big question is, will enough people in Scotland care about such an outrage enough to spur them into voting for independence? This solution after-all is the only action that will prevent Scottish law being altered without the consent of Scotland.
If the majority are happy with this clear lack of control over the fate of their own country, then there wouldn’t be much point having independence anyway in my opinion.
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