Top law professor: Tory Brexit plan implies taking power away from Scotland to Westminster

Repeal bill plan implies power-grab from Scotland to Tory Government at Westminster

BREXIT THREATENS TO unsettle the position of the Scottish Parliament with powers being taken away to Westminster Governments, according to a senior law expert at the University of Cambridge. 

Professor of Public Law Mark Elliott, responding to the publication of the Tory Government’s ‘Repeal Bill’ white paper today (Thursday 30 March) said that its “implication seems to be new reserved matters will be carved out of exiting devolution settlements”.

Professor Elliot added that the paper gave: “No guarantee that repatriated EU powers will go to devolved institutions, even in relation to subject-areas that are currently devolved.”

The prospect of a power-grab by Westminster is already causing alarm in the Scottish Government, with the possibility of a further legal conflict over any attempt to break the Scotland Act 1998. An attempt to take substantial powers back from Holyrood would represent a dramatic reversal of nearly 20 years progress towards greater devolution.

Minister Michael Russell MSP, commenting on the white paper, added: “There are no new powers proposed for the parliament beyond those required to fix the mess that will be caused by Brexit, exposing what have so far been empty promises from the UK Government.

“In all other areas where powers already belong to the Scottish Parliament the white paper continues to threaten that in areas such as agriculture, fisheries and the environment, powers will be taken by the UK Government after Brexit. 

“The Government intends to replicate the current frameworks provided by EU rules through UK legislation.” UK Government White Paper

“For the UK government to seek to impose legislative frameworks on these areas would be to take the unprecedented step of extending its powers over Scotland and must not take place. The Scottish Parliament’s competences must not be diminished as a result of Brexit.”

The Repeal Bill involves moving thousands of legal issues out of EU law. This relates to agriculture, fisheries and the environment, which were fully devolved under the 1998 Scotland Act - but continued to involve EU wide frameworks such as the fisheries (CFP) and agriculture (CAP) policies. 

Chapter 4, 4.4 of the white paper implies that Westminster will make law in these areas rather than Holyrood: “To provide the greatest level of legal and administrative certainty upon leaving the EU, and consistent with the approach adopted more generally in legislating for the point of departure, the Government intends to replicate the current frameworks provided by EU rules through UK legislation,” the paper states.

The Tory Government is yet to publish further information on how it plans to act in regards to the devolved settlements. However, it has pledged “intensive discussions” with the Scottish Government. 

Brexit minister David Davis admitted in parliament that he “didn’t know” whether legislative consent from the Scottish Parliament would be required for the plans.

Picture courtesy of English PEN

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