Devolution after Brexit: ‘Power Grab’ or a ‘Significant Increase in Decision-making Power’

One of the questions that arose very soon after the EU referendum was what would happen to the powers currently exercised by the EU over areas of government activity which would otherwise be devolved. The initial assumption in many quarters was that such powers would automatically be devolved to the Scottish parliament and other devolved legislatures. Indeed, even during the referendum campaign itself, some prominent Scottish ‘Leave’ campaigners made the argument that the UK leaving the EU would make the Scottish parliament much more powerful precisely because it would acquire such powers in that eventuality.

However, some suggested that such assumptions might be premature. I argued in a blog piece I wrote in February 2017 that there could be no assumption that such an extensive transfer of powers would necessarily take place. In March 2017, former PM Gordon Brown went so far as to warn that ‘unless powers now with the European Union are repatriated from Brussels to the Scottish parliament, the Welsh assembly and the regions, Whitehall will have perpetrated one of the biggest power grabs by further centralising power’.
The UK government’s Brexit devolution approach
Those words of caution were shown to have some validity when the UK government set out its proposed approach to the transfer of EU competences to the devolved legislatures and administrations in its white paper on ‘Legislating for the United Kingdom’s withdrawal from the European Union’ published at the end of March[i]. It emphasised there that ‘at EU level, the UK government represents the whole of the UK’s interests in the process for setting…common frameworks’, and that ‘when the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK’. Only afterwards might there be further transfers of former EU competences to devolved administrations, after determining ‘the level [of government] best placed to take decisions on these issues.’

The First Ministers of Scotland and Wales both expressed their concerns at the approach set out in that white paper, and more recently issued a joint statement describing the measures in the EU (Withdrawal) Bill on devolved powers as representing a ‘naked power grab’. The Scottish and Welsh governments have now suggested a number of specific amendments to that bill which aim to ensure that EU competences relating to devolved matters are not retained by the UK parliament after Brexit.

The reason such issues have arisen is a consequence of the nature of the devolution settlement in Scotland (as for the other devolved administrations). The general principle adopted in that settlement, set out in the 1997 white paper ‘Scotland’s Parliament’[ii] is that ‘what is not specifically reserved is devolved’. Therefore, powers not specifically retained at Westminster fall under the authority of the Scottish parliament and ministers. However, from the start, an important qualification to that general rule was that the Scottish parliament and ministers have to comply with EU law in terms of passing legislation and day to day administration. On the basis that they would no longer be required to do so after Brexit, it might appear that all these EU competences should automatically be devolved at that point as they had not been specifically reserved by the 1998 Scotland Act.

The problem, of course, is that when the devolution settlement was constructed it assumed continued EU membership by the entire UK. It is therefore not unreasonable to argue that as it was never envisaged that the powers which fell within the authority of the EU at time of the 1998 Scotland Act would at some stage fall within the powers of the Scottish parliament and government, there should be no automatic transfer of those EU competences to the devolved institutions.
If there were to be such a transfer, it is argued, there would be a real danger of damaging policy divergence, and lack of coordination, between the different nations of the UK in important areas of former EU competence. In the words of the UK government white paper, ‘it will be important to ensure that stability and certainty [after Brexit] is not compromised, and that the effective functioning of the UK single market is maintained’.[iii]

Sequencing of repatriated powers
One solution to the problem might be found in the approach which both the Scottish and Welsh governments have indicated would be their preference. The principle of ‘what is not reserved is devolved’ would apply to all current EU competences, and then the administrations would agree (presumably before the date of Brexit) with the UK government which of these powers should then be exercised either by the UK government on its own, or jointly with the devolved administrations.

However, such arrangements would clearly put the devolved administrations in the driving seat in deciding the long-term allocation of former EU competences relating to devolved matters between the UK and the devolved nations, as those powers could only be allocated and exercised centrally with the consent of the devolved nations. The UK government has so far rejected such an arrangement, no doubt because of a fear that the devolved administrations might indeed prevent a UK-wide approach being adopted in significant areas of former EU competence.

Instead, as described above, the UK government’s intention is that the powers over ‘common policy frameworks’ currently set by the EU will return to the UK in the first instance. Only thereafter will there be ‘intensive discussions with the devolved administrations’ to determine where such powers will not need to be retained at UK level in the future[iv].

The current European Union (Withdrawal) Bill aims to put that approach into effect. It provides that current powers exercised by the EU will not fall within the competence of the Scottish parliament and government, and it will therefore be up to the UK parliament and government to exercise those powers after Brexit. Thereafter, the UK government can transfer, by Order in Council, powers previously exercised by the EU to devolved legislatures in such a manner and at such time as it seems fit. Such transfers will require the approval of both Houses of Parliament, and of the Scottish parliament itself.

Under the EU (Withdrawal) Bill, ministers in the devolved administrations will also be given limited powers to ‘correct deficiencies’ in their own legislation which arise from withdrawal from the EU, to remedy potential breaches of international obligations, and to implement the eventual withdrawal agreement. These are ‘Henry VIII’ powers, in that they can make ‘any provision that could be made by an Act of Parliament’.[v] However, those powers are restricted to matters that are within the devolved competence of the relevant ministers. Furthermore, devolved ministers will not have the power to modify ‘retained direct EU legislation,[vi] unlike their UK counterparts. They are also specifically prohibited from making regulations (except with the consent of a UK minister) about any quota arrangements.[vii]

Obstacles to Brexit devolution to Scotland
As the EU (Withdrawal) Bill allows transfer of EU competences to devolved administrations to be undertaken by means of an Order of Council (subject to UK and the devolved legislature) it is undoubtedly the case that such transfers could be made speedily, as they would not require the lengthy parliamentary process necessary for the passage of an Act of Parliament. But from the perspective of the devolved administrations it should be noted that a major drawback is such ‘release’ of current EU competences from the authority of UK ministers into devolved competence requires a positive initiative by the UK government to take the steps necessary to transfer that competence.

If the UK government chooses not to, or if the UK parliament refuses to approve the necessary legislation, then the power concerned will not be devolved. This must increase the opportunity for anyone who is opposed to that transfer, be it within the government or elsewhere, to seek to obstruct its transfer. That might take the form of a positive decision by the UK government not to transfer that power, as a result of a specific political choice being made. But it might also take the form of delaying tactics within the government or by groups of MPs opposed to the particular transfer proposed; or it might just result from the immense legislative burden which will fall on the UK government and parliament in order to deal with the consequences of Brexit.

There will be a legislative and legal log-jam both before and after the date of Brexit: considering proposals for, consulting upon, drafting, and thereafter making legislation on the incorporation of EU law into domestic UK legislation. Taking steps to transfer areas of EU competence to devolved institutions may not be the top of the UK government’s list of priorities.

That being so, there must indeed be a risk of a ‘power grab’, as much by default and inertia as by design. And the longer that returned EU competences remain untransferred to devolved institutions, the more likely will be the possibility that the political case will have to be made again on each time that a transfer of power over an area of EU competence is proposed to be made to a devolved institution. The dynamics of decision-making on the allocation of former EU competences to devolved nations will be in a very different position where it is those nations that have to make a case to the UK government for transfer of power from one where it is the UK government has to convince devolved administrations both of the need for a competence to be retained, and of the mechanism by which such a competence will be exercised and controlled at central level.

Proposals to give Scotland a greater role
The only certain way of preventing the claimed ‘power grab’ is by adopting the principle that EU competences are not added to the powers currently reserved to the UK parliament, so that they then transfer directly to the devolved administrations. The amendments proposed by the Scottish and Welsh governments to the EU (Withdrawal) Bill would have that effect. However, if the UK government rejects such proposals, as seems likely, there are other, if less far-reaching, steps that could be taken to give the Scottish parliament (and the other devolved administrations) a much stronger voice and role in the process which has now been commenced with the passage of the EU (Withdrawal) Bill through parliament.

These are measures which I suggest could be put in place to give the Scottish parliament and government that greater voice and role:

It could be specified that the powers which the bill gives to UK ministers to modify ‘retained EU law’ can be only exercised, when they concern devolved competence, if the Scottish ministers give their consent. (Amendments of this nature have been proposed by the Scottish and Welsh governments).

It could be specified in the EU (Withdrawal) Bill that certain powers over ‘retained EU law’ will be devolved by the bill itself, rather than waiting for them to be subsequently ‘released’ from reserved competence by ministerial decision and secondary legislation. For example, certain environmental powers which currently rest with the EU could be transferred to devolved competence now. The Scottish and Welsh governments have identified many other areas where such transfers could be made.

The Scottish Parliament could be given the power in the EU (Withdrawal Bill) to legislate on retained EU law where it would have otherwise been transferred to the Scottish Parliament automatically, but with the qualification that any item of such legislation by the Scottish parliament could be vetoed by the UK government if it considered that it was inconsistent with its UK-wide approach to powers which were being returned from the EU.

A ‘reverse sunset clause’ could be put into the EU (Withdrawal Bill). The bill currently includes ‘sunset clause’ provisions to limit the powers of ministers to make changes through secondary legislation, so that they expire after two years after the UK’s final exit from the EU. At that stage, unless those powers are extended, or replaced by similar mechanisms, it will therefore only be the UK parliament that can make further decisions about repeal or amendment of retained EU law.

Although UK ministers would presumably have the power, under section 30 of the Scotland Act 1998, to devolve further powers over ‘retained EU law’ to the Scottish parliament, this would still give the UK government and parliament the final say over whether any such powers should be transferred. Instead, the EU (Withdrawal) Bill could provide that, at the end of the two years, powers over ‘retained EU law’ would automatically be ‘released’ to the devolved administrations, unless the UK parliament specifically legislated for such competences to continue to be reserved. This would place a heavy onus on the UK government to make a positive decision about which, if any, EU competences should continue to remain within the competence of the UK parliament after the sunset clauses expired.

Avoiding the Brexit ‘power grab’
No doubt other mechanisms could be proposed as to how to ensure the Scottish parliament and government can be given a greater role in the process of transferring EU law to the UK after Brexit. Some of the measures I have proposed above could perhaps be combined, or their extent limited, if it was considered that their effect would be too far reaching to be compatible with the wish to maintain that the UK’s own internal ‘common market’.

However, if some such mechanisms as those outlined above are not put in place, it seems quite possible that the Scottish parliament and other devolved legislatures will find that the increased range of powers that they might have expected to exercise after Brexit will not be transferred to them for some considerable time to come, notwithstanding the UK government’s stated expectation[viii] that ‘the outcome of the process will be a significant increase in the decision making power of each devolved administration.’

That possibility of what has been described as a ‘power grab’ would exist even if there was political goodwill on all sides, given the procedural complexity of, and the inevitable bureaucratic delays that will emerge from, the arrangements currently proposed in the EU (Withdrawal) Bill. In the not unlikely absence of political goodwill on all sides, it is reasonable to surmise that the Scottish parliament might find it has to wait much longer for such transfers of power to be put into effect unless its role in the EU withdrawal process is considerably enhanced.
[i] Legislating for the United Kingdom’s Withdrawal from the European Union, Cm 9446, March 2017, chapter 4.
[ii] Cm 3658, chapter 2.4.
[iii] Cm 9446, chapter 4.3
[iv] Ibid., chapter 4.4
[v] See Sch 2
[vi] Sch 2, clause 15 (1)
[vii] Sch 2, clause 16 (1) (c)
[viii] Chap 4.5

This article was first published on the website of the Scottish Council on European Relations, 20 September 2017

 

 

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Time to make the most of trams

It looks like the long-awaited Edinburgh tram extension is finally about to happen. The case for the extension is stronger than ever. Edinburgh’s expected population growth over the next few decades means that the city must develop a modern public transport network. Trams are an ideal type of transport for areas with a high population density, like Leith. There’s also potential for future development of the network into the areas surrounding the city.
Of course, lessons must be learned from the delays and massive cost overruns in the original tram project. Hopefully the ongoing tram inquiry will provide some ideas to make sure mistakes aren’t repeated. And the city needs to make sure that any extension makes proper arrangements for the safety of all those travelling in or around the tram tracks, particularly cyclists.
The construction of the tram network must also not be allowed to undermine local businesses. This is particularly important in and around Leith Walk, where many businesses were badly affected by the previous disruption. I’ve seen reports that help might be provided for around 300 businesses along Leith Walk. However, I know that there were also businesses in neighbouring streets that were also severely hit by disruption, but weren’t eligible to receive any help to make up for loss of business. There should be a generous programme of grants and interest-free loans for all the affected businesses in the area.
Even the limited extension of the tram route will make more journeys possible, and is projected to increase passenger numbers substantially. But the full potential of the trams will not be tapped until they run on a real network, rather than just on one relatively short route. So, it is important to complete the full tram network originally planned. That includes the completion of the circle to provide tram links for much of north Edinburgh. The opening of the new Queensferry Crossing is a reminder that the Scottish Government once floated the idea of using the space freed up on the original Forth road bridge to extend the airport tram route to serve the growing communities of south-west Fife. The extension to Newbridge should go ahead. Links to the Edinburgh Royal Infirmary area need to be re-examined, possibly along different routes from the original one proposed, and should include services into Midlothian and East Lothian.
Many other routes could no doubt be suggested. What is vital is that our local and central governments must think and plan for the public transport needs of the whole of south-east Scotland for future decades, not just the short term. And an extended tram network could play a big part in making that happen.

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Let’s make Edinburgh’s transport more visitor-friendly

I was sitting on an Edinburgh bus the other day, and a scene developed which will be all too familiar to regular users of our city’s normally excellent public transport. A family, obviously tourists, got on the bus and tried to buy tickets. They clearly did not have a good command of English, and had difficulty understanding the need to have ‘exact fare only’. Eventually, after a few minutes, the bus driver asked them to leave the bus, with the tourist group still not really understanding the ticketing system.
That made me wonder about the ease, or otherwise, with which our city’s buses and trams provide information for travellers – tourists or otherwise – in any language other than English. And the answer, is not a lot. A handful have information in other languages at bus stops. There is nothing on the buses or trams themselves. The bus and tram websites are in English only, as is the app. And even though the trams and many buses now have display monitors, their contents are all in English too.
Contrast this with what you can find in many other European cities. You can find multilingual information at bus stops. Websites and journey planners in numerous languages. Automatic ticket machines which work in a number of different languages. Display screens on trams and buses which give travel information in at least one other foreign language.
And what both visitors and residents might also appreciate would be an end to the ‘£10 ticket rip off’ on the city’s tram system. That is the way in which customers who don’t realise they have to, or know how, to buy a tram ticket before getting on, are hit with a £10 flat charge. I’ve lost count of the number of times I have been on trams to see passengers, normally visitors to our city, end up having to pay this charge, or having to get off to buy tickets from the machine.
Would it not be sensible to at least improve the chances of foreign visitors understanding the system if there was multi-lingual ticket information available at tram stops? Visitors, and passengers from Edinburgh as well, would also have more options available to them if they could actually buy tickets on board trams. If some reason they can’t be sold by the on board staff, perhaps at a slightly higher fare, then why couldn’t Edinburgh trams adopt the system you see in many other European tram systems, with automatic ticket machines actually on board the trams.
Some may say that as most visitors to our city probably understand at least some English, there’s no need to put in such facilities. I disagree. I want visitors to our city to enjoy their experience as much as they can. Many readers will know how frustrating it can be if we are in a foreign country and the public transport system isn’t easy for visitors to understand.
And, at the end of the day, as well as improving the experience of visitors to our city, it would also make life on buses and trams a little bit more convenient for us residents as well. The less time bus drivers have to explain to foreign visitors how the ticket system works, the quicker our journeys will be – and a little less stress will be placed on our hard-working bus and tram staff!

(This article was first published in the Edinburgh ‘Evening News’)

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Ten Big Brexit Issues: Questions for the General Election

Kirsty Hughes, the director of the leading Scottish European think tank, the Scottish Centre on European Relations, has set down an excellent set of questions which ought to be considered in the 2017 General Election campaign. I thought it would be good to find out how individual candidates will respond to those questions.

I’ve asked the candidates from the main parties standing in my own constituency, Edinburgh North and Leith for their response to the questions.  The responses I’ve received so far are given below. Thanks to the candidates for taking the time to reply!

Here is Kirsty Hughes’  blog, and her key questions on Brexit:

EU27 and UK Priorities

The Brexit talks will broadly cover three main areas: the UK-EU27 divorce, the new trade and security deal between the UK and EU27, and the transition phase to get from the UK’s exit in March 2019 to a future trade deal possibly several years later. The EU27 have set their three top priorities for the exit talks as: the rights of EU citizens in the UK & UK citizens in the EU; the UK’s budget liabilities on leaving the EU; and Northern Ireland – ensuring a soft border and not undermining the Good Friday Agreement. Only then will they talk trade, they say.

Theresa May has set her priorities for a future trade deal to include: leaving the EU’s single market and customs union, having a UK migration policy (not being part of the EU’s free movement of people) and not coming under the jurisdiction of the European Court of Justice. UKIP’s policies are in line with this too. Labour wants a deal that is as good as the EU’s single market but without being in it, possibly being in the customs union, but no longer accepting free movement of people. The Lib Dems and English/Welsh Greens would prefer a soft Brexit, staying in the EU’s single market and accepting free movement of people. The SNP and Scottish Greens would prefer independence in the EU – or at least a soft Brexit for the UK as a whole or for Scotland on its own while still in the UK (the latter proposal rejected by Theresa May). Given these EU27 and UK political party positions, ten key areas for questions are suggested here.

Ten Key Areas for Brexit Questioning

(1) EU citizens in the UK and UK citizens in the EU

Do you support EU citizens in the UK having the same rights they have now (to residence, pensions, being joined by family members, benefits, European Court of Justice role to ensure their rights are protected etc)? If not, what rights would you give them, and would you expect the EU27 to accept your proposal?

(2) The UK’s Bill

How much do you think the UK’s exit liabilities are? Would you pay them? If not, why not? If the UK budget liabilities to the EU are shown genuinely to be €50-100 billion, would you agree to those being paid? If not, why not?

(3) Borders: Northern Ireland and Scotland

Do you think a ‘soft’ border between the Republic of Ireland and Northern Ireland (with cameras, with customs paperwork to be done somewhere even if not at the border) will be politically and technically feasible or politically damaging or technically infeasible?

If Scotland were an independent country in the EU, would any economic/customs barriers between it and the rest of the UK (for goods and agriculture) be identical to those between the UK and EU27? If not, why not?

(4) Repatriation of EU law: Northern Ireland, Scotland and Wales 

Do you support EU powers on agriculture, fisheries and environment being fully returned to Scotland, Wales and Northern Ireland? If so, how would that work? If not, how would that work?

(5) UK migration policy: costs and benefits 

If the UK has its own separate migration policy, no longer participating in freedom of movement of people across the EU, will the EU27 offer the UK a less good trade deal than otherwise? If so, what will the economic costs of that be? If not, why would the EU offer an equally good deal irrespective of migration policy?

If the UK government, after the election, set soft Brexit as its goal, keeping the UK in the EU’s single market (with free movement of people) and in its customs union, what are the economic and political costs and benefits of this compared to full EU membership and compared to a bespoke UK-EU27 trade deal?

(6) Future UK-EU27 Trade Deal

Do you think a bespoke UK-EU-27 trade deal inevitably means less access to the EU’s single market than the UK has now? If not, why not? If yes, what will the economic costs of that be?

When UK firms export to or operate in the EU post-Brexit, they must meet its regulations. What regulations would you see as most important to change after March 2019 for firms only operating in the UK domestic market? Do you see these as some of the key benefits of Brexit?

How long do you think it would take the UK to renegotiate existing EU trade deals that cover almost sixty countries around the world? How many new trade deals (excluding the renegotiation of ones the UK is in due to its EU membership) do you expect the UK to have successfully negotiated by 2022?

What will the economic benefit of those deals be and how does that compare to any reduction in UK-EU27 trade due to not being a full member of the EU’s single market?

(7) Transition Phase 

Would you support the UK staying in the European Economic Area (i.e. free movement of people, EFTA court) for a transition period from March 2019 until the comprehensive UK-EU27 trade deal is agreed and ratified? If so, for how long?

If not, what are the key elements of a transition deal – and for how long? Should the UK stay in the customs union during the transition phase? If so, when would you want the UK to leave the customs union and start negotiating its own trade deals?

If the UK doesn’t stay in the customs union, do you envisage there being adequate customs space at ports and airports by March 2019. If there would not be adequate space, what transition arrangements would you propose?

(8) Irretrievable Breakdown of Talks 

If the talks break down, and there is no deal, what impact would a ‘WTO cliff’ have on the UK economically and politically? Will there be a major crisis – if so, what could be done to alleviate this? If not, why not?

If the talks break down irretrievably, would you support either staying in the EU after all or trading with the EU on WTO terms? Would you support having a referendum on this? If not, why not?

(9) Letting the Public Vote on or before the Deal 

Do you support a referendum once the exit deal is agreed in late 2018 on accepting the deal or staying in the EU after all? If not, why not?

(10) Brexit Overall

Overall, do you think Brexit will be positive or negative for the UK? In the House of Commons, will you continue to support Brexit or argue for the UK public and government to think again?

 

ANSWERS RECEIVED FROM CANDIDATES

 

MARTIN VEART (Scottish Liberal Democrat)

I am totally against Brexit: the questions themselves highlight the massive problems involved.

 

LORNA SLATER (Scottish Green Party)

1)I believe in free movement and support the right of people to live with their families in wherever in Europe that they want to.

2) This is a matter for negotiation between the EU and the UK

3) If a ‘soft border’ solution can be arranged for Ireland & NI, then a similar arrangement must logically be possible for Scotland & rUK.

4) I support an independent Scotland in the EU.

5) I believe in free movement and support the right of people to live with their families wherever in Europe that they choose to make home.Reply

6) I support an independent Scotland in the EU

7) 8) 9) 10) I support an independent Scotland within the EU

 

 DEIDRE BROCK (Scottish National Party)

 

 (1) EU citizens in the UK and UK citizens in the EU

– Do you support EU citizens in the UK having the same rights they have now (to residence, pensions, being joined by family members, benefits, European Court of Justice role to ensure their rights are protected etc)?

– If not, what rights would you give them, and would you expect the EU27 to accept your proposal?

Answer:  I do support this – and I would support continuing freedom of movement, even after Brexit (unlikely, at best, I acknowledge) because I believe that free movement has enhanced our society and enriched our communities financially and culturally.  The Court of Justice angle might be a little difficult – I can’t see the EU accepting a UK judge on it after Brexit and I can’t see the UK Government accepting its rulings without there being a UK judge on it.

I don’t have any confidence in the negotiating tactics of the Government (nor do I have any confidence in the Ministers’ ability to negotiate well) and I worry about the outcome of the negotiations.  We’re going to have to stay observant throughout the whole process and keep pressuring the Government on this and the other issues in the Brexit mess.  I’m not sure that there is a good deal to be had and I’m even less sure that the UK Ministers are negotiating in good faith but we have to do our best to hold them to account.

 (2) The UK’s Bill

– How much do you think the UK’s exit liabilities are? Would you pay them? If not, why not?

– If the UK budget liabilities to the EU are shown genuinely to be €50-100 billion, would you agree to those being paid? If not, why not?

Answer:  Yes, of course we’d have to pay them.  You can’t walk away from liabilities and still expect to be treated as a trusted partner in the future.  These liabilities will be committed spending on the current round as well as a whole load of other considerations.  There’s a paper taking a decent stab at quantifying them here – http://bruegel.org/2017/03/divorce-settlement-or-leaving-the-club-a-breakdown-of-the-brexit-bill/

The actual total of those liabilities, however, will be a matter for negotiation and, as I said earlier, I don’t have any confidence in the UK Government’s negotiating abilities.

(3) Borders: Northern Ireland and Scotland

– Do you think a ‘soft’ border between the Republic of Ireland and Northern Ireland (with cameras, with customs paperwork to be done somewhere even if not at the border) will be politically and technically feasible or politically damaging or technically infeasible?

– If Scotland were an independent country in the EU, would any economic/customs barriers between it and the rest of the UK (for goods and agriculture) be identical to those between the UK and EU27? If not, why not?

Answer:  I’ve been the SNP leader on Northern Ireland since 2015 and I can tell you that the border issues are a huge concern – the psychological border was as much of a barrier as the physical one during the troubles and there is a huge desire to make sure that it never goes back there.  That desire to maintain openness and the flexibility of the EU in finding solutions to problems should mean that a workable solution is found.  Donald Tusk has already said that avoiding a hard border should be a priority and Michel Barnier has said that a solution can be found.  David Davies has claimed that he wants the same thing but he appears to think that it should be linked to a trade deal so it looks like the UK Government might be the stumbling block.

Once Scotland is independent and rejoins the EU there will be negotiations over the border with rUK as part of the accession process.  The EU doesn’t operate on a dictatorial basis and it will seek to ensure that no Member State was disadvantaged by being a Member State so a solution should be within touching distance to allow more open trade between Scotland and rUK than between the EU and rUK.  It may be, of course, that businesses currently operating in England consider the possibility of moving to Scotland to take advantage of Scotland’s membership just as they will currently be considering whether to move operations to another EU Member State in advance of Brexit.

(4) Repatriation of EU law: Northern Ireland, Scotland and Wales

– Do you support EU powers on agriculture, fisheries and environment being fully returned to Scotland, Wales and Northern Ireland? If so, how would that work? If not, how would that work?

Yes.  There may have to be some framework agreements between the Governments to ensure collective action on things like fishing and on the environment which would mean that the Joint Ministerial Committee would need to gear up a bit.  It should be recognised, though, that the UK will need to come to agreement with the EU on a fishing framework if we want to continue selling fish in that market and on collective efforts on the environment if we want to actually make a difference.  I imagine we’ll end up with agreements similar to those of Norway, Iceland and the Faroe Islands rather than the ones with southern partners.  The CFP won’t be going away after Brexit.

(5) UK migration policy: costs and benefits

– If the UK has its own separate migration policy, no longer participating in freedom of movement of people across the EU, will the EU27 offer the UK a less good trade deal than otherwise? If so, what will the economic costs of that be? If not, why would the EU offer an equally good deal irrespective of migration policy?

– If the UK government, after the election, set soft Brexit as its goal, keeping the UK in the EU’s single market (with free movement of people) and in its customs union, what are the economic and political costs and benefits of this compared to full EU membership and compared to a bespoke UK-EU27 trade deal?

Answer:  The economic costs of losing the migration are going to be heavy enough before we even get round to looking at what damage could come in a trade deal; we’re already seeing academics looking at moving to other EU Member States, we’ll lose a pool of skilled workers, budding entrepreneurs and young, energetic folk.  If we don’t keep free movement we’ll see our population age and if we don’t have mutual guarantees for EU citizens already and UK citizens already abroad we’ll be swapping the current cohort of young people who contribute to our economy for a load of folk who retired to warmer climes.

I’m not sure whether the UK’s xenophobic immigration stance will impact greatly on the trade deal; I suspect that other Member States are despairing of getting grown-up contributions from the UK and look askance at each development from Whitehall.  The EU will be negotiating in the best interests of its remaining Member States and that will be the deciding factor so the UK’s immigration policies will only matter if it’s considered that it impacts upon the interests of those remaining Member States.

I would be delighted – wreathed in smiles, in fact – if the UK Government saw sense and sought to keep us in the single market but I can’t see it happening; they seem fixated on wiping the last traces of the EU off of their heels as they leave.

(6) Future UK-EU27 Trade Deal

– Do you think a bespoke UK-EU-27 trade deal inevitably means less access to the EU’s single market than the UK has now? If not, why not? If yes, what will the economic costs of that be?

– When UK firms export to or operate in the EU post-Brexit, they must meet its regulations. What regulations would you see as most important to change after March 2019 for firms only operating in the UK domestic market? Do you see these as some of the key benefits of Brexit?

– How long do you think it would take the UK to renegotiate existing EU trade deals that cover almost sixty countries around the world?

– How many new trade deals (excluding the renegotiation of ones the UK is in due to its EU membership) do you expect the UK to have successfully negotiated by 2022? What will the economic benefit of those deals be and how does that compare to any reduction in UK-EU27 trade due to not being a full member of the EU’s single market?

Answer:  We’re absolutely certain to have less access as a result of Brexit – you can tell that by the fact that EU leaders are saying we’ll have less access and how they’re insistent that a non-Member can’t have membership benefits that are as good as Members have.  There is also the repeated statements from UK Government Ministers that indicate they don’t want to keep single market access – Brexit means Brexit and the removal of noses to spite faces, apparently.  I don’t think it’s yet possible to quantify the economic damage that leaving the single market will cause – although economists will be giving it a go.

There are no regulations that I think particularly hamper businesses operating in the domestic market but I do have a fear that UK Ministers will seek to make political capital by saying they are ‘cutting red tape’ and employment and environmental protections will be threatened.

Given the timescales of trade deals in the past and the possibility that the other parties to the trade deals may be looking at the UK as a wounded competitor and so looking for advantages, I think it will possibly be decades before we have deals to match existing EU deals.  That could be speeded up if the UK Government was prepared to approach potential partners with a deal replicating the EU deal but I doubt very much whether they would do that.

I don’t expect any trade deals to be successfully negotiated by 2022.

(7) Transition Phase

– Would you support the UK staying in the European Economic Area (i.e. free movement of people, EFTA court) for a transition period from March 2019 until the comprehensive UK-EU27 trade deal is agreed and ratified? If so, for how long? If not, what are the key elements of a transition deal – and for how long?

– Should the UK stay in the customs union during the transition phase? If so, when would you want the UK to leave the customs union and start negotiating its own trade deals?

– If the UK doesn’t stay in the customs union, do you envisage there being adequate customs space at ports and airports by March 2019. If there would not be adequate space, what transition arrangements would you propose?

Answer:  I support Scotland being independent in the EU rather than the mess that’s coming our way just now.  I’d support EFTA membership as a backstop to that but I’m not sure just how welcome the UK would be in EFTA – I could see the application being rejected.

I’d support remaining in the customs union for as long as possible (preferably by not leaving the EU) but I think the reality is that we’ll be heaved out of the customs union at the earliest possible opportunity by Ministers determined to make their mark.  I think it’s also more than possible that UK Ministers will walk out of the negotiations before they are concluded to try to seem strong.  The idea of this lot trying to negotiate trade deals fills me with horror.

(8) Irretrievable Breakdown of Talks

– If the talks break down, and there is no deal, what impact would a ‘WTO cliff’ have on the UK economically and politically? Will there be a major crisis – if so, what could be done to alleviate this? If not, why not?

– If the talks break down irretrievably, would you support either staying in the EU after all or trading with the EU on WTO terms? Would you support having a referendum on this? If not, why not?Answer:  If the talks break down – something not beyond the bounds of probability – it will leave the UK looking politically foolish at the very least.  If, as seems possible, they break down because the UK walks away from the table the UK will seem politically untrustworthy as well.  There is a major crisis already – it’s not a question of whether there will be, it’s here now.  Mitigating the impact of that crisis would require UK Ministers to consider compromise and perhaps admit that the approach so far has been ill-considered so I cannot see that happening.  Scotland, of course, has the option of leaving the UK and looking at rejoining the single market.

 

I already support staying in the EU and will continue to support staying in the EU whatever happens.  I support Scotland being an independent Member State of the EU and will work towards that.  A referendum is always, I think, the way to allow people to decide their future.

 

(9) Letting the Public Vote on or before the Deal

– Do you support a referendum once the exit deal is agreed in late 2018 on accepting the deal or staying in the EU after all? If not, why not?

Answer:  I support a referendum in Scotland on whether we accept the direction of the UK or make our own decisions.  We should have a referendum on whether Scotland stands with the UK in splendid isolation or takes a place in the EU as an independent nation to cooperate with our European neighbours.

(10) Brexit Overall

– Overall, do you think Brexit will be positive or negative for the UK? In the House of Commons, will you continue to support Brexit or argue for the UK public and government to think again?

Answer:  It’s a huge, seething negative.  I have never supported Brexit and I’ll continue to argue for Scotland to continue membership of the EU.

 

IAIN McGILL (Scottish Conservative & Unionist)

1. The next Conservative Government will secure the entitlements of EU nationals in the UK as well as UK nationals in the EU.

2. We will make a fair settlement of the country’s rights and obligations in the spirit of the UK’s continuing partnership with EU member states. We will observe our legal obligations, but we expect obligations to us to be observed too and this is a matter for negotiation.

3. We will maintain the Common Travel Area and maintain as frictionless a border as possible for people, goods and services between Northern Ireland and the Republic of Ireland. The hardening of the border between a hypothetical Scotland and the rest of the UK would depend on a broad range of factors, but any of the possible options are worse than the current fully integrated domestic market of the UK. 4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.worse than the current fully integrated domestic market of the UK. 4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.worse than the current fully integrated domestic market of the UK.

4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.

5. Britain is an open economy and a welcoming society and we will always ensure that our British businesses can recruit the brightest and best from around the world. We also believe that immigration should be controlled and reduced, because when immigration is too fast and too high, it is difficult to build a cohesive society. We should make the immigration system work for sectors where there are skills shortages, whilst developing the skills we need for the fut5. Britain is an open economy and a welcoming society and we will always ensure that our British businesses can recruit the brightest and best from around the world. We also believe that immigration should be controlled and reduced, because when immigration is too fast and too high, it is difficult to build a cohesive society. We should make the immigration system work for sectors where there are skills shortages, whilst developing the skills we need for the future.

 

6. I want the best possible trade agreement between the UK and EU. The Prime Minister will be not be pursuing a deal that retains membership of the single market but will instead seek to achieve a bold and ambitious new free trade agreement. This agreement will be mutually beneficial to both parties.

7. An implementation period in which Britain, EU member states and EU institutions prepare for the new arrangements that will exist between us will be in our mutual self-interest. This might be about immigration controls, customs systems or criminal justice. For each issue, the time to phase in new arrangements may be different but I can assure you that there will not be an unlimited transition.

 

8. I do not believe the talks will break down as it is in our mutual interests to find an agreement.

9. The people have voted in a free and fair referendum. I do not think there should be another one, nor do I detect an appetite for one.

 

10. I believe there will inevitably be challenges, but I also see great opportunities for Scotland and the UK as a whole. I will work towards the best possible future outside of the European Union.

 

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What happens with the ‘progressive alliance’ now?

So, it looks as if there won’t be a ‘progressive alliance’, at least involving Labour or the LibDems, for the 2017 General Election. I’m not surprised, although I thought Jeremy Corbyn might at least have kept the door slightly ajar – given his past willingness to work together on various issues with groups across the political spectrum.

 

Of course, it might be that in some cases there will be local deals between parties, through minimising campaigning in ‘hopeless’ seats, and giving supporters a ‘nod and a wink’ that it would be OK to vote for another party in that area. To my mind, that kind of approach is a lot less honest than coming to an open and principled agreement to co-operate in (say) a number of key seats, but that’s almost certainly going to be the reality.

 

But if the parties aren’t going to co-operate, it is clear that many voters will. And they will receive all sorts of encouragement to do so. Labour figures from the Corbynites (e.g. Paul Mason) to the Blairites (e.g. Tony Blair himself, see here) have called for action across parties. The left wing think tank Compass has launched a crowd funding appeal for a Progressive alliance, here: Gina Miller, whose legal challenge to the government on its attempt to trigger Article 50 without Parliamentary approval did more to hold it to account than months of parliamentary activity has launched another initiative to campaign against ‘hard Brexit’.

 

Millions of people across the country want to stop the re-election of Tory government, committed not just to Brexit, but also a whole package of right wing and illiberal policies. They know that that with a divided opposition, with our unfair and flawed electoral system, Theresa May could end up with a big majority, even with minority support in the country. There may not be any formal progressive alliance between parties for the 2017 election, but we are likely to see a loose and informal movement of progressive voices and groups working together against ‘hard Brexit’ and the right-wing revolution. And I suspect that movement will continue beyond that election, whatever its outcome.

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Would EU citizens be able to vote in a second Scottish independence referendum?

As the prospect of a second referendum on Scottish independence has now come back on the agenda, I thought it would be useful to look at the question of whether EU citizens resident in Scotland would be able to vote in such a referendum. Given that the future relationship between Scotland and the EU is likely to be a key issue in such a referendum, the significance of the votes of such citizens may well be substantial. In the last referendum on Scottish independence, in 2014, EU citizens in Scotland were able to vote – would they be able to vote in a future second independence referendum, particularly if it was held at a time after the UK had left the European Union?

The answer, as with so much else relating to Brexit, is that we don’t know. The 1998 Scotland Act, which is the constitutional foundation for Scottish devolution, states that various aspects of some elections, including who is entitled to vote, are matters over which the power to legislate is reserved to the UK Parliament. The extent of that reservation will reduce once the 2016 Scotland Act is fully in force.

However, the Scotland Act 1998 does not include the franchise for referendums in the list of reserved matters, so in principle the Scottish Parliament can decide who can vote in referendums which it decides to legislate for. The question is whether the Scottish Parliament has the legal powers under the Scotland Acts to hold a referendum on independence at all. Legal opinion is mixed on that question, but the view held by most constitutional lawyers is that it probably does not have that power. There is a good explanation of the position in this article by Professor Stephen Tierney, here. Certainly, the question is sufficiently open to have prompted the Scottish Government to seek the agreement of the UK government to hold a referendum on Scottish independence in 2014, and to seek that agreement for a second independence referendum if that is held.

The question of whether EU citizens would be able to vote in a future independence referendum would therefore depend on the nature of any agreement reached between the Scottish and UK governments as to who would be able to vote in such a referendum. If the UK government did not make any specification as to who could vote in that referendum, the Scottish Parliament could make the decision to include whosoever it wished in the franchise for that vote.

That franchise could include EU citizens; indeed, in principle, there is no reason why it could not extend the franchise to the citizens of any foreign country currently resident in Scotland (or indeed, for former residents of Scotland now living outside Scotland).

Moreover, there is nothing in the legislation preventing the Scottish Parliament from including EU citizens in the franchise for a future independence referendum, even if the UK (including Scotland) had by that time departed the European Union. It should be noted that in the 2014 referendum, the franchise also included Irish and Commonwealth citizens legally resident in Scotland, as these citizens are included on the register for all elections in the UK (unlike EU citizens, who cannot vote in elections for the UK Parliament), even though there are no international treaties compelling the UK to grant the vote to such residents.

The issue, therefore, is whether the UK government was prepared to leave the question of the franchise for a future referendum to the Scottish government and Parliament to decide, or whether it would seek to limit the right of EU citizens to vote in such a referendum, whether it was held before or after the date of a final ‘Brexit’. That matter would no doubt be a subject for negotiation between the UK and Scottish governments.

For an explanation of the position regarding EU citizens’ right to vote in UK elections (including Scotland), see my blog here.

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Cuts have been bad for Scottish education, but Curriculum for Excellence is at the root of the problem

I’m glad to see that there is at last a serious discussion taking place about the lack in educational attainment in many Scottish schools. Part of the problem has come lack of finance, which from my own knowledge has led to shortages of teachers in key subjects and other cuts, as well as demoralisation amongst many teachers. And the SNP Scottish Government must take the responsibility for that – it has, after all, been in government for 10 years, and it has made the budget and taxation choices which has resulted in education not getting the finance it ought.

But if we are going to tackle the lack of attainment, we must recognise that lack of cash is not the only problem, and probably not the fundamental problem. I have said for some time that the Curriculum for Excellence has not just been badly implemented, but also that it is flawed in its essence. I agree with the analysis by Professor Lindsay Paterson, Professor of Education Policy at Edinburgh University, which can be seen in this short clip (which I strongly recommend you read – it’s less than 2 minutes long): http://www.bbc.co.uk/news/uk-scotland-39172769

Note two of his comments: “the evidence is that the Curriculum for Excellence is at the core of problem with educational attainment” ; “the whole point of the Curriculum for Excellence is misconceived”. These are conclusions he says he has reached from the evidence.

Note also that his damning comment that “the things we have been trying to teach Scottish children for at least the last 15 years have been causing them to learn less than their counterparts in other countries”.

15 years, of course, includes both SNP and Labour/LibDem governments, and perhaps that is why although leading figures in all these parties are prepared to say there have been problems in ‘implementation’ of the Curriculum for Excellence, or have, rightly, pointed out how lack of finance has contributed to those problems, there appears to be some reluctance to accept that there are more fundamental problems with the Curriculum for Excellence. No doubt that is why the Conservatives, having been out of Scottish government, have been more ready to accept that the policy is misconceived in essence.

In my view, all the Scottish political parties should now accept that the Curriculum for Excellence does have fundamental flaws, and an urgent review is needed, with action to follow. Every year that is delayed, our schools education system is likely to fall behind our counterparts. That need for review and action is what should be the priority for the Scottish Government, not possible further reorganisations of the structure of education.

If the Scottish Government and Parliament do not do that, they will fail current and future generations of Scottish school students; and a country which falls behind in educational attainment is likely to fall behind in economic performance as well.

 

 

 

 

 

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