Law Society of Scotland: No need for Brexit curb of Holyrood Powers

Regular readers will be aware that the bill currently being debated at Westminster is set to undermine the powers of the Scottish Parliament.

In its current form, the European Union (Withdrawal) Bill 2017-19, amends the Scotland Act in a way that will prevent Scottish ministers changing laws that are about to repatriate from the EU to Holyrood. It will also allow UK Government Ministers to potentially change Scottish laws without any oversight or discussion.

Today the Law Society of Scotland confirmed that Holyrood powers are set to be undermined by the bill in its current form.

Essentially as things stand Holyrood will gain competencies that it has no power to change but which can be changed from afar with little or no debate. The Law Society published four recommendations that could resolve this central issue.

Here are those recommendations in reverse order of preference from the point of view of anyone who wants the Scottish Parliament to gain from Brexit.

  • The first is to return EU competencies to UK level which is the worst case scenario for supporters of Scottish independence or a Federal UK. Although, this is no doubt the preferred Tory option if they can get away with it.
  • The second solution is slightly better in that it puts a timescale on the existing bill. It means the Scottish Parliament would not be able to legislate on these issues for some fixed time after Brexit to allow the UK to align the laws with their post-Brexit deal. Then after that time, the Scottish Parliament would gain some or all of those powers.
  • The third option would be to allow the Scottish Parliament to legislate on the new competencies but to amend the Scotland act so as to add constraints. Currently, although EU competencies such as fishing are devolved to Scotland, the Scotland Act prevents Scottish Ministers from altering them while we are in the EU. The UK government could put in similar constraints when the powers are repatriated,  for example, they could add a clause preventing changes that might damage the UK single market etc.
  • The last option is the preferable one for those who support Scottish independence or just want to see a powerful devolution settlement. That is to allow Scotland to use the repatriated powers but to agree on a common framework with the UK government for their use. This is what happens currently with many powers that are not reserved to Westminster.

So, as we watch with interest what occurs in the next few day, it is good to know that there are a couple of options that don’t involve completely curbing the power of Holyrood. Question is, will they be implemented?

If you found this useful, then check out our blog on how Labour can give themselves a meaningful Brexit Veto.

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Bobby Hainey

Joint founder of Autonomyscotland. In my spare time I enjoy Road Cycling, Munro bagging and beer.

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