David Mundell refuses to rule out UK Government ignoring Holyrood’s ‘democratic legitimacy’ on Brexit

The Scottish secretary repeatedly avoided stating whether the UK Government will adjust its position if the Scottish Parliament withholds its consent on the EU Withdrawal Bill

SCOTTISH SECRETARY DAVID MUNDELL is facing accusations of a potential U-turn after refusing to rule out the possibility of the UK Government ignoring the will of the Scottish Parliament if Holyrood withholds its legislative consent on the EU Withdrawal Bill.

Appearing before the Finance and Constitution Committee today [3 May], Mundell was repeatedly challenged by SNP MSP Bruce Crawford, the committee’s convener, to confirm what the UK Government’s response would be if Holyrood refused to consent. 

Despite having previously given assurances that frameworks “should not be imposed” by the Brexit bill, Mundell’s evasions suggest that the UK Government may, for the first time, pass legislation contrary to the Scottish Parliament’s wishes.

Mundell told the committee: “Rather than speculating on numerous scenarios, I want to make sure we are focusing on getting agreement.”

In response, Crawford said: “Given you have not given a definitive position, I can only conclude then in these circumstances the UK Government would be prepared to ignore the will of the Scottish Parliament.”

Crawford has also stated that there is now a “distinct possibility” that the EU Withdrawal Bill will not be approved by MSPs.

“I can only conclude then in these circumstances the UK Government would be prepared to ignore the will of the Scottish Parliament.” SNP MSP Bruce Crawford

Following the exchange, SNP MSP Ivan McKee commented: “The UK Government’s amendments to the EU Withdrawal Bill itself confirm consent as either ‘consenting’ or ‘not consenting’, tying Holyrood’s hands either way.

“If this is where we’re headed, it would be a massive U-turn for David Mundell, who previously said that frameworks ‘should not be imposed’. Has he now gone back on his word?”

Scottish Green Party co-convener Patrick Harvie MSP argued that Mundell’s response indicated a lack of respect or understanding for the principle of consent.

Harvie said: “Consent should be a very clearly understood idea. To ask for consent surely means acknowledging that consent is actually needed, but the UK government is being pretty clear that it will act as it wishes whatever we say. This is contempt for the democratic legitimacy of the Scottish Parliament.

“It’s astonishing that the UK government can’t agree what it wants to do about the Customs Union, freedom of movement, the Irish border or any other aspect of the Brexit crisis – but has already agreed that it will be necessary to put a wrecking ball through the devolution settlement.”

The controversy is the latest indication of the ongoing deadlock between the Scottish and UK Governments, both of which have shown little sign of budging during last-ditch talks in London this week, held in an attempt to secure an agreement over a post-Brexit deal of returning EU powers.

Following the committee meeting, Mundell told press that it was “disappointing” a deal between the two legislatures was being held up over a “head of a pin constitutional argument”, adding that “the public in Scotland are sick and tired of constitutional rows.”

The Finance and Constitution Committee will publish its report for the Scottish Parliament by 11 May at the latest, ahead of the expected Scottish Government motion recommending either consent or refusal on the EU Withdrawal, which must be lodged by 14 May. If the Scottish Parliament is to indicate consent, it must do so no later that 16 May, while the bill goes through the final stages of the House of Lords.

As talks continued, SNP Westminster leader Ian Blackford claimed on Wednesday [2 May] that the UK Government is “demonstrably unwinding elements of the Scotland Act” with the current form of the EU Withdrawal Bill, as control over two dozen devolved powers will be frozen in Westminster for up to seven years upon the UK leaving the EU.

“If there is a failure to reach agreement over the coming days, which I suspect is now where we are, then we are going to be in the situation where this is going to be determined by the Supreme Court.” SNP Westminster leader Ian Blackford

Blackford continued: “If there is a failure to reach agreement over the coming days, which I suspect is now where we are, then we are going to be in the situation where this is going to be determined by the Supreme Court. That in itself puts us in uncharted territory since the reestablishment of the Scottish Parliament in 1998.”

Asked if increasing possibility of constitutional crisis might raise the likelihood of a second Scottish independence referendum, Blackford answered: “These are questions that we will come back to.”

Blackford’s latest remarks would appear to contradict the earlier cautious optimism of Scottish Brexit minister Mike Russell, who stated earlier this week that he still believed a deal was “perfectly possible.”

Prior to the latest breakdown of talks, the UK Government has already this week been forced into a defensive posture by its latest defeats on Monday in the House of Lords, with the peers voting by a majority of 91 to give the House of Commons a decisive say over the outcoming of ongoing negotiations with the EU.

Despite May’s insistence that such an amendment would weaken the UK’s ability to negotiate with the EU over the nature of Brexit, the defeat throws doubt upon the prime minister’s position that the UK will leave the EU even in the event of a ‘no-deal’ scenario.

The amendment will now return to the House of Commons to be voted on by MPs, there remain doubts over whether a sufficient majority exists to overturn the House of Lords’ decision.

With the UK Government forced onto the back-foot, it seems unlikely that First Minister Nicola Sturgeon will weaken her own position, reiterated on 30 April in an article written by Sturgeon for the Sunday Herald newspaper. Sturgeon argued that the planned transfer of powers from Brussels to Westminster will mean “completely demolishing the principle at the heart of the devolution settlement" by giving the UK Government final say over many devolved policy areas.

Despite warnings from some quarters that the Labour-led Welsh Government’s acceptance of EU Withdrawal Bill, following changes by UK ministers, would leave the Scottish Government isolated in its opposition to Brexit in the current form, it is the Welsh Government that now appears an outlier, with Sturgeon’s position – and her challenge over the weekend to Scottish Labour to back it – winning support from opposition parties.

“This is contempt for the democratic legitimacy of the Scottish Parliament.” Scottish Green co-convener Patrick Harvie

Speaking at Westminster’s Public Administration and Constitutional Affairs Committee as part of its inquiry into Devolution and Exiting the EU, Scottish Labour leader Richard Leonard cemented his opposition to the Brexit bill in its current form, stating: “We wouldn’t accept it. There still some aspects of this that need to be addressed.

“This still fails to recognise properly the 1998 Devolution Act and the default position of powers residing with the Scottish Parliament and not the UK Parliament.”

A spokesperson for the left-wing SNP campaign group Neutral Scotland told CommonSpace: "The devolution settlement is under clear threat, and by extension so is the popular sovereignty of Scotland itself. Where common frameworks are required, they must be agreed upon by mutual consent amongst equals and not imposed from above.

“The Scottish Government must resist this power grab and opposition parties should stand with them regardless of their constitutional belief, if they want to protect the integrity of the institution they elect to serve."

Kirsty Hughes, director the Scottish Centre on European Relations, told CommonSpace that she believes there is still room for compromise: “Not least given the UK government's bizarre definition of a refusal of consent still being consent. There is room for the UK government to offer a more interactive process to reach consensus on occasions where initially there is not.

“Whether such a move is forthcoming depends on if the UK Government wants to reach a deal or play hardball. Given the multiple Brexit and other challenges piling up before Theresa May, compromise might look sensible but it doesn’t look like the direction of travel.”

Picture courtesy of the Scottish Government

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