Will Scotland get more powers after Brexit?

Many people have assumed that one side effect of Brexit will be that the powers currently devolved to the Scottish Parliament and Government will be enhanced.

That is because many, perhaps even most, of the powers which are currently exercised by the European Union cover areas of governmental activity which are not specifically ‘reserved’ to Westminster by the founding legislation of Scottish devolution, the Scotland Act 1998, in its current form.

At the moment, the Scottish Parliament cannot legislate in a way which is incompatible with EU law. After Brexit, therefore, on the reasonable assumption that the Scotland Act 1998 will be amended so as to remove that requirement for compatibility with EU law, it has been suggested that those powers currently exercised by the EU, and which are not reserved to Westminster, will then be exercised by the Scottish Parliament and Scottish Government.

This would indeed mean a major enhancement of devolved powers, if that were to happen. Indeed, that potential for a devolution ‘windfall’ as a result of Brexit was held out by some ‘Leave’ campaigners in Scotland as another argument in support of their case, one which would be particularly attractive to nationalists and enthusiasts for ‘devo-max’.

That conclusion is only valid, however, if nothing is done to prevent those current EU powers in non-reserved areas from devolving by default to Scotland. I do not believe that it can be assumed that will be the case.

If the UK Parliament, as part of the UK government’s ‘Great Repeal Bill’ measure decides it wishes to amend the Scotland Act to specify that all, or some, of the powers returned from the EU will be reserved to Westminster, it has the power to do that. The UK government might regard such a step as a transitional measure to put in place whilst it undertakes the massive task of gradually deciding which EU law to keep in domestic UK legislation.

It could take the view that, as there was no serious suggestion at the time of the establishment of the Scottish Parliament that the UK would ever leave the EU, a more fundamental reassessment would need to be taken of the balance of powers between Westminster and the devolved administrations, if the EU is no longer part of the picture.

After all, given that the devolution settlement of 1998 would have been unable to transfer existing EU powers (as it would have been against EU law to do so) to the Scottish Parliament and the other devolved assemblies, it might be argued that it was in no one’s mind in 1997 that these bodies would ever exercise the powers which had been transferred to the European Communities almost a quarter century earlier in 1973.

Will the current UK government decide to ‘re-reserve’ to the Westminster Parliament powers in all or some of the areas where the EU currently has the power to make laws – or will it allow all these powers to move seamlessly to the devolved legislatures?

We don’t have a clear idea yet, as with much of the detail of the path which the UK will travel towards Brexit. But the UK government’s recently published Brexit White Paper certainly suggests that complete onward devolution to the devolved legislatures and governments of EU competences is not at all what it has in mind. Para 3.4 of that White Paper says:

3.4 This has meant that, even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.

But, note, what is said is that these rules will be set ‘here in the UK’ by ‘democratically elected representatives’. Those could of course be MSPs, or their counterparts in Wales and Northern Ireland – but that could equally well mean MPs at Westminster. And the next paragraph goes on to say:

3.5 As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before. We have already committed that no decisions currently taken by the devolved administrations will be removed from them and we will use the opportunity of bringing decision making back to the UK to ensure that more decisions are devolved.

The wording is significant. The UK will ‘have an opportunity to determine the level best placed to make new laws and policies’. That could clearly be the UK Parliament, rather than the devolved administrations. Furthermore, the commitment is only that ‘no decisions currently [my emphasis] taken by the devolved administrations will be removed from them’. All that is said for the future is that ‘we will use the opportunity…to ensure that more decisions are devolved’.

These paragraphs certainly don’t suggest a firm and unqualified intention to give Scotland all the powers currently exercised by the EU in areas which are currently not reserved to the UK under the 1998 Scotland Act. It sounds much more like a hint the UK government at the very least wants to consider the implications carefully before transferring those powers on to Scotland when they return to the UK from the EU.

First published at European Futures and Sceptical Scot, 17 February 2017

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How the Scottish Parliament can stop environmentally damaging APD cuts

 

A committee of the Scottish Parliament is currently looking at proposals for an “Air Departure Tax Bill” to replace Air Passenger Duty (APD) when this is devolved next year. Like many people, I’m concerned at the Scottish Government’s plans to cut and eventually abolish that charge. I’ve therefore sent a submission to the committee asking them to propose amendments to the Bill which would prevent any Scottish Government introducing changes to APD which would be environmentally damaging.

My submission is below. You can send your own views and evidence to the Scottish Parliament committee by email to: Finance.Constitution@parliament.scot.

But hurry – the consultation period closes on 10th February 2017!

 

“Submission to the Scottish Parliament Finance & Constitution committee:proposals for Air Departure Tax Bill

 The proposed Air Departure Tax will give the Scottish Government the powers, subject to approval by the Parliament, to charge a tax to replace the current Air Passenger Duty (APD) levied across the UK.

I am concerned that the Scottish Government, in line with the policy of the SNP, is currently proposing to reduce the level of tax paid under the APD regime. A proposal for certain reductions in air passenger tax has also been made by the Scottish Conservative & Unionist Party.

I believe that these proposals must inevitably lead to damaging environmental consequences, and reduction in government revenue, at a time when public services in Scotland are under pressure. The only way in which they would not have an effect on government revenue would be if the number of flights leaving from Scotland increased substantially, but that in itself would mean even greater effects on the environment.

I therefore urge the committee to recommend changes in the draft Air Departure Tax bill to make sure that the effect of any changes in the air passenger regime introduced by the Scottish Government would not have negative environmental consequences overall.

I have drafted a possible amendment to the Bill which seeks to achieve that objective. It is set out below. I should emphasise that I am not a parliamentary draftsman, and I am sure that the terms of my proposed amendment could be improved by those with expertise in that field. I believe, however, that it sets out important principles which should be incorporated in the Bill.

My proposal would allow the Scottish Government to vary the existing rates and bands of air passenger tax if it wished. It could, for example, reduce tax on international flights, but increase tax on domestic flights for which other methods of transport are easily available.

Proposed amendment to the Air Departure Tax (Scotland) Bill

In Section 10 of the Air Departure Tax (Scotland) Bill (Tax bands and rate amounts to be set by regulations) after sub-section (1) insert:

(2) Before making regulations under this section, the Scottish Ministers shall ensure that they undertake an environmental assessment of the impact of the regulations which they propose to make. Any such assessment shall include consideration of whether the making of such regulations would be likely to result in (i) a net increase of emissions contributing to global climate change, or (ii) a deterioration of air quality in the immediate vicinity of airports in Scotland.

(3) The Scottish Ministers shall have regard to any environmental assessment which is produced under sub-section (2) of this section in making any regulations under this section.

(4) The Scottish Ministers shall not make any regulations under this section which would be likely to result in (i) a net increase of emissions contributing to climate change or (ii) a deterioration of air quality in the immediate vicinity of airports in Scotland.

 

Mark Lazarowicz ”

@marklazarowicz

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What should Labour’s pro-Europeans do now?

This week’s Commons vote in favour of the Bill triggering Article 50, has angered and upset many Labour party members. I share those feelings. But, as on any occasion in life and politics, when things don’t go the way you would like, what you have to do is pick yourself up and work out what to do next. So here are some suggestions of what Labour’s pro-Europeans should now do.

First, we keep up the campaign, and remind ourselves what we are fighting for. The Brexiteers, of course, would like us to shut up, go away, and accept that the UK is heading for a ‘Hard Brexit’. So let’s remember that when we campaigned for the UK to remain in the EU, we weren’t just fighting for jobs and our economic interests, but for more than that. We were supporting the principle that nations should cooperate and work together, and we recognised that the EU, imperfect though it was, was a vehicle to promote workers’ rights, environmental protection, social cohesion and solidarity, human rights and liberal values. Those are principles and values which we should not jettison as a result of a narrow majority in a consultative referendum.

In addition, the fears that many of us had that a vote for Brexit would have consequences far beyond the issue of the UK’s membership of the EU have been confirmed. In the UK, our government has been taken over in a ‘Hard Brexit’ coup, whipped up by anti-immigrant and anti-European hysteria in some of the media and shamefully encouraged by some MPs. Internationally, the government’s Brexit strategy has driven it to seek friends in an assortment of would-be authoritarian leaders, President Trump being of course the most prominent. Labour should be saying loud and clear that is not an international alliance of which we want to be part; and with all due respect to Jeremy Corbyn, it is not much good leading protests against a Trump state visit if Labour then waves through a Tory post-Brexit strategy which forces the UK into a close alliance with the Trump administration.

Second, we must remember that the Parliamentary battle is not yet over. I can understand, though disagree with, the view that said Labour MPs should vote in principle to trigger Article 50 because of the referendum result. But now we have passed that stage, Labour MPs should make it absolutely clear that if the serious amendments aimed at stopping ‘Hard Brexit’ and minimising the damage are defeated, then the Bill should be voted against at third reading. That’s the way Parliamentary procedure is meant to work. If MPs accept the principle of a Bill, but doesn’t like its details, then they try to amend it. If the amendments don’t deal with the defects, you vote against the whole Bill.

I hope that lots more Labour MPs will make it clear they are prepared to do that. Let’s tell them that. I know that many voted with the Tories on second reading with great reluctance, and if enough make it clear that they will not support a ‘Hard Brexit’ triggering of Article 50, then hopefully the Labour leadership will take a firmer stand in the subsequent stages of the Bill, or if not, at least allow a free vote. And even if the government succeeds at third reading, a close result will give the House of Lords the legitimacy to allow even closer scrutiny of the Bill, which the Commons will then be able to consider in its final votes on the Bill.

Third, even if the Bill eventually passes, there is ample opportunity for Labour, in collaboration with other pro-EU MPs, to make the government negotiate a relationship with the EU that maintains close links with its and its members. We were told time and time again by Leave campaigners in the referendum that the UK could have a Norway-type relationship with the EU if we left, and yet since the referendum result, they have worked day and night to stop that happening, and the government has adopted that agenda. Why does not Labour say loud and clear that if the UK is going to leave the EU, then at least it wants at least to maintain a close relationship by the UK becoming part of the European Economic Area (EEA), which would remove 99% of the economic uncertainty about a future relationship with the rest of the EU? I suspect the answer is that to join the EEA means having some form of freedom of movement between the UK and the EU/EEA. It does, although there is certainly room to negotiate some special arrangements, but isn’t it time for Labour to stop running scared on the issue of immigration and free movement? Unless Labour decides to adopt anti-immigrant policies similar to UKIP, the only coherent policy for Labour has to be tell the truth about migration and free movement, and instead of pandering to anti-immigrant prejudice, come up with policies that tackle the real reasons for economic marginalisation. That’s a line Jeremy Corbyn maintained with some dignity over the summer. Let’s encourage him to recognise that is only compatible with EEA, or a similar status, after Brexit.

Finally, we should work with the grass-roots pro-European campaign that, far from dissipating, is increasing its strength and coherence. Labour members, and MPs, should be doing what they can to encourage that movement, and help it and us take back the agenda from the Brexiteers. Many who were supporters of Leave, or at least ambivalent, are certainly hostile to the idea of a UK which lines up with Trump on the world stage, against our friends and partners in the rest of Europe. Let’s help to build up that campaign. Such a campaign will help encourage wavering MPs, in all parties, to support the closest possible continuing relationship with the EU, and to stop the UK turning into a client state of an autocratic US president. And if we can show we’re fighting back in the UK, that will give encouragement to those fighting to maintain social progress, democracy, liberal values and human rights elsewhere in Europe and indeed in the US.

@marklazarowicz

(First published on ‘Labour List’, 2nd February 2017)

 

 

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Tam Dalyell – some personal memories

 

The death of Tam Dalyell, one of the most remarkable Labour MPs that I have known, has been rightly marked today by extensive obituaries in many media outlets. I won’t try to add to the full accounts of his life which can be found there, but thought as my own mark of respect mention three particular episodes which represent different aspects of his unique character.

The first is the last time I actually met Tam. It was last year, at the annual lecture he sponsored at the Edinburgh International Science Festival, held to mark contributions by scientists for “Excellence in Engaging the Public with Science”. Tam was by that stage very frail. But his intellect was as sharp as ever, and his prize lecture illustrated his commitment and interest in science, and public understanding of scientific progress. For him, politics was something which needed to be taken outside Parliament, although he was in the best sense a committed parliamentarian.

A much earlier occasion was when I was a Labour Parliamentary candidate for the first time, in Edinburgh Pentlands in 1987. First time candidates in non-Labour seats were allocated (I imagine they still are) ‘mentors’, and I was allocated to Tam. This was shortly after the Falklands war, and I well remember a phone call I received about 11.30 pm one night. I answered the phone somewhat blearily, and heard in that slow and deliberate voice of his: “It’s Tam. I’m very worried about the Belgrano.” Being half-asleep, I could not immediately work out what I, as a mere Labour candidate and local councillor, was meant to do about that, but I blurted out an appropriate response. Tam, no doubt, went to pursue his concerns about that issue with more productive and more important interlocutors.

But it didn’t end there. Prompted by Tam, I duly held a couple of public meetings in the constituency to discuss the issues he raised about that issue, and it is a mark of how widely he stirred convention and received wisdom that hundreds of people came along to hear and question him. And Tam did go on to give me some practical advice and support in my election campaign in 1987 in other ways as well, for which I was very grateful.

And when I was eventually elected as a Member of Parliament, in 2001, Tam was certainly somebody who I could see for myself was both respected, and regarded as an infernal nuisance, for pursuing his many and wide-ranging concerns. Tam was, of course, regarded as a ‘rebel’. In fact, he didn’t vote against the party whip on many occasions. I don’t think he liked doing that. But he would, when principles were at stake. I remembered that when, as a recently elected MP, I agonised about whether I should vote against the Labour government’s proposal to join the US in the 2nd Gulf War. Tam, along with Robin Cook, was one of those whose passionate opposition to the Iraq war convinced me to vote against that ill-fated enterprise.

And Tam was also, of course, a convinced European. Last year, he urged MPs who wanted to keep the UK in the EU not to be cowards and vote for what they believed. An approach which I would commend to quite a few MPs as they face the momentous decision whether to back Theresa May’s Brexit plans, and her patent wish to tie the UK to Trump’s foreign policy.

 

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Labour must reject Theresa May’s Brexit strategy

Over the last few days there has been a lot of uncertainty over what the Labour Party position will be when Parliament votes on whether, and how, the UK government should begin the process of leaving the EU. That lack of clarity obviously reflects deep differences in approach within the leadership and the wider parliamentary party.

It shouldn’t be like this. The decision that will need to be taken is one of the most important that the UK has ever faced. Now that the Conservative government has at last made clear its Brexit objectives, Labour must come up with a coherent – and democratic socialist – response if we are to have any credibility as a serious opposition party.

And we should leave no doubt that Theresa May’s approach is one that we must reject in its entirety. If Labour has ‘red lines’ which it has said the government must not cross, but the government then breaches them, then Labour must vote against those plans. Making a fuss, but then at the end of the day voting to trigger Article 50 in such a way as to allow the government to negotiate as it wants, would make Labour look absurd.

My view is that given the narrow majority in the advisory referendum, and the way in which it becomes clearer every day that Brexit was sold on a false prospectus, the UK should not start the Article 50 process but seek to negotiate further changes in the EU to reflect those concerns. I suspect most other EU states would welcome that.

But if Labour is prepared to vote to start the Article 50 process, then it should seek to amend the government’s proposals to make it clear that it is only authorised to negotiate with the EU on the basis of the UK staying in the single market, and keeping the progressive EU-wide policies on issues such as environmental protection, and workers’ and social rights. It ought to be possible to achieve a Parliamentary majority for that, from Labour, SNP, LibDem, smaller parties and some pro-EU Tories. If such an amendment is lost, then Labour should vote against giving the government the go ahead to start the Article 50 process.

To give the government the freedom to pursue its vision of the UK as an offshore tax haven would be a total betrayal of Labour’s values, principles, and history. It would also likely to be electoral suicide. Hardly any votes would be won back from UKIP or anti-European Tories, but millions more voters in England would be likely to move to the LibDems or the Greens, and in Scotland, a few more votes would be lost to the SNP. We should not need to be discussing whether Jeremy Corbyn would be allowing a free vote on the issue; what we want is Jeremy Corbyn is to be making it clear that Labour will vote against giving the go-ahead to the Tory Brexit plans.

(This article was first published 24 January 2017 on http://www.labourhame.com)

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Will Trump declare war on the EU?

Not in a literal sense, of course, with bombs and armies, but it is a reasonable question to ask given some of what he and his closest supporters have been saying over the last few days. Trump himself has made no secret of his hostility to the EU. The outgoing US ambassador to the EU has said that he believes Trump wants to see the EU break up. And one of those tipped to take over the role of US ambassador to the EU has indicated that he would like to see the US doing bilateral trade deals with EU countries.

That highlights the existential threat to the EU posed by the new US administration. Because, as the Trump advisers will well know, the EU negotiates as one group with states outside it. One result of that arrangement is that it gives the EU collectively a stronger negotiating hand in trade deals than individual EU member states. If individual states in the EU wanted to negotiate bilateral deals with the US (or any other country), they would have to leave. It looks as if some at least in the Trump administration want to encourage other EU states to leave, tempted by favourable deals, and that is a process which, if it took off, could well lead to the eventual disintegration of the EU.

Think for a minute about the way the USA would respond if the EU tried to do what it seems Trump might want to do. Can you imagine the reaction if senior EU figures announced they would be backing secessionist movements in part of the USA? And yet that is what the new administration appears to want to do to with the US’ closest allies and partners for decades.

I’ve wondered why Trump seems to have this visceral hostility to the EU. Part is no doubt a gut hostility to the liberal values and culture which Europe is still seen to represent. Part will probably be a wish by a politician who boasts he is a ‘deal maker’ to strengthen his hand in some sort of primeval battle between nation states. If the EU breaks up or weakens, the US will be in a stronger position in negotiations, not just in trade, but in all international relations with individual European countries.

But perhaps at the heart of his hostility, if we can discount some of the more lurid theories why Trump seems to prefer authoritarian and illiberal Russia to the democratic and liberal EU, is this. For Trump and his advisers, the EU is the strongest world institution which stands for cooperation between nations rather than competition. The EU’s vision of states, and the world, setting up frameworks and binding agreements to tackle pressing problems of humanity such as climate change, world poverty, and the refugee crisis is anathema to them. Even though the EU has fallen short so often in its efforts to tackle those and other problems, it nevertheless stands for the noble vision of harmony between nations. Trump, I am afraid, gives every sign of being someone who sees the world as an arena of conflict where success goes to the mightiest.

As Ted Malloch, tipped to be the next US ambassador to the EU said a few days ago: “Trump is very pro-European but he is not well disposed towards the European Union or other supranational organisations”.

I suspect that puts it mildly. Europe must recognise the threat it faces from the Trump administration and develop a strategy which recognises the enormity of that challenge. To hope everything will turn out alright is to assume that Trump doesn’t mean anything that he says. Even if he only believes half of it, that could be enough to destroy the EU, and at its most extreme, the stability and peace of all Europe. Maybe he won’t turn out as bad as I fear. But I would rather not count on that.

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Scotland – and Edinburgh – needs to keep on campaigning to save the Green Investment Bank

 

One of the undoubted successes for Edinburgh achieved by effective campaigning was the decision to establish the headquarters of the Green Investment Bank (GIB) in Edinburgh.

Like all successful initiatives, the GIB was claimed as an achievement across the political spectrum. Vince Cable announced it for the Coalition government, but David Cameron was also keen to claim as it a ‘green’ achievement for his government. In fact, the person who should take the initial credit was Alistair Darling, who announced the government’s intention to launch the GIB in 2009, confirmed in a 2010 budget.

It is true that the decision to locate it in Edinburgh was taken under the Coalition; but that decision followed a genuinely cross party and cross community campaign for that to happen. In the House of Commons, it was led jointly by myself along with the former LibDem MP for Edinburgh West, Mike Crockart. We had strong support from Alistair Darling as former Chancellor, but also from SNP MSPs, and (quietly) from some Tories who recognised Edinburgh’s strengths. The City Council gave a great deal of support to the campaign, as did Edinburgh’s business community, and environmental NGOs.

That’s why I have been surprised and not a little disappointed by the relatively lacklustre campaign there has been in response from Scotland to the way that the current government is planning to sell off the GIB. To be fair, the SNP government has strongly criticised the proposals, and the SNP finance spokesman has raised the issue in the Commons on more than one occasion. But if you look at Hansard, you will see that the most vociferous and persistent opposition has come from Labour front benchers like Clive Lewis and Kevin Brennan, along with the Green’s Caroline Lucas. And elsewhere, it has been former Coalition ministers like the Tory Greg Barker and LibDem Vice Cable who have been at the forefront of the campaign. I am particularly surprised at the low key opposition that we have seen from Edinburgh’s parliamentary representatives, given that myself and Mike Crockart made the case for the GIB to come to Edinburgh month after month. As far as I can tell from Hansard, very few MPs from Edinburgh have said anything in Parliament about the threat to the GIB. UPDATE – since I wrote this blog yesterday, an Urgent Question was asked in the House of Commons today (11 January) at the request of Caroline Lucas MP. I am pleased to see that as well as Labour and SNP front bench spokespersons, two Edinburgh MPs  (Ian Murray and Joanna Cherry) intervened powerfully in that session as did a number of other Scottish MPs, including George Kerevan from East Lothian.

What needs to be emphasised is that it is not just the privatisation of the GIB that is the problem, but even more the type of privatisation that now appears to be under way. Ex-Tory Minister Lord Barker has talked of asset stripping. It certainly seems to me that the GIB is at real risk of turning from the pioneering investor in and partner of both environmental business and local government, into a simple investment bank with only a green veneer. One consequence of that is that the knowledge and support of green enterprise which the GIB has been able to display will disappear, and its role as an active intervener to support green business in Scotland will also be diminished. That will inevitably risk also the GIB’s ability to bring together green finance and green entrepreneurship, and reduce Edinburgh’s role as a leader in both those fields.

So I close with a plea to Scotland and Edinburgh’s representatives, particularly those at Westminster: please keep making the case against the UK government’s privatisation plans. And the City Council needs to speak up as well, and the Scottish Government keep up its critique of the government’s plans. All the signs are that there is a lot of Parliamentary scepticism, not just from the opposition parties, about the plans for the GIB. And now is the time to do it, before the government make a final decision on the sell off.

For a good summary of the current position with the GIB sell off, see here https://www.theguardian.com/business/nils-pratley-on-finance/2017/jan/09/green-investment-bank-sale-theresa-may-macquarie

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