THE First Minister asked a good question in Holyrood last week: where should the powers that are coming back from the EU go? In Nicola Sturgeon’s view, there can be no doubt about the answer: any powers affecting areas that are devolved – such as agriculture and fisheries – should come back to Holyrood. Any other option, she said, would be unacceptable. It would, in Ms Sturgeon’s words, be a power grab on Scotland’s parliament.
The opposition parties’ response to the First Minister’s assertion was that she was guilty of blatant hypocrisy – the SNP, they said, were complaining about the return of substantial new powers which, under its own plans, would remain even further away in Brussels. But now a respected committee of MPs has warned that the risk identified by the First Minister is real - the idea of a power grab is no longer just an assertion of the SNP.
The MPs issued their warning in a report by the Exiting the EU Committee, which has looked at the negotiating objectives outlined in the UK Government’s white paper on Brexit. According to the report, the paper does indeed raise the possibility that some EU powers for devolved areas could be returned to the UK Government rather than the devolved administrations. “It is unclear which EU powers will be repatriated directly to the devolved governments,” says the report, “and there is uncertainty regarding who will have policymaking authority in some areas.”
The UK Government’s position on the issue is that the return of powers from the EU will be a chance to decide where the powers would be best placed within the UK. It has promised that no decisions currently taken by the devolved administrations would be removed from them, but that is not the same as saying EU powers on devolved matters will go to the devolved administrations. According to the white paper, the returning powers would have to work for the whole of the UK - in other words, the aim would be to create a policy framework that would protect a single market within the UK.
There is some logic to that position – every repatriated power has to fit within the current constitutional structure of the UK – but there is also some danger lurking in the UK Government’s vagueness on the issue, as the committee’s report makes clear.
Part of the problem is the scale of the negotiation on which the UK Government is embarking. The aim is to reach an agreement, among other things, on the cost of Brexit, new trading arrangements, and the status of British nationals in the EU and EU nationals in Britain, as well as establish new rules on immigration, minimise disruption to business and jobs, and protect the free border between Ireland and Northern Ireland. And all of it within 18 months.
Just a few days after the triggering of Article 50, that list looks pretty intimidating, but add in reaching an agreement with the devolved governments and it starts to look almost impossible. The guiding principle is clear though: if an EU power affects a devolved area, the presumption should be that it returns to the devolved administration. Anything else would threaten the spirit and practice of devolution.
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