It never used to be a big deal, but Westminster has changed devolved law almost 150 times since 1999. These changes normally covered uncontentious or technical issues like the regulation of fireworks and the transport of guide dogs in taxis. Crucially, it was only ever done with the Scottish Parliament’s consent.
But Brexit has thrown a large and inconvenient spanner into the works. The European Union (Withdrawal) Bill, the UK Government’s flagship piece of Brexit legislation, affects devolved law and so requires Holyrood’s agreement – but Holyrood has said no.
Initially hailed by Theresa May as the Great Repeal Bill, this is the legislation that will take the UK out of the EU. It will repeal the legislation that took the UK in and add EU laws to the UK statue book. Once we have left, MPs can then retain, amend or repeal specific laws.
The section of the Bill that proved to be controversial was Clause 11 (now renumbered as Clause 15). Some powers that are currently exercised by the EU cover areas that are devolved to the Scottish Parliament including agriculture and environmental regulations. Clause 11 dealt with this by stating some would first go to Westminster before being devolved to the Scottish Parliament at an unspecified date in the future.
The Scottish Government’s position, however, was that all these powers should first go to the Scottish Parliament. Failure to do this, Nicola Sturgeon claimed, would be an “attack on the founding principles of devolution”.
Despite David Mundell’s promise to the contrary, the offending clause was only amended when the legislation reached the House of Lords. Powers over repatriated EU law would go back to the Scottish Parliament unless the UK Government passed regulations stipulating otherwise – regulations which would be subject to a “consent decision” by the Scottish Parliament.
While this was acceptable to the Welsh Government, the Scottish Government, backed by a report from Holyrood’s Finance & Constitution Committee, has held out. The UK Government’s proposal relating to the “consent decision” attracted a lot of attention. For the purposes of the amended Bill, a “consent decision” was defined as any decision taken by Holyrood, including a decision to reject regulations. This generous definition of consent, opponents argued, would allow the UK Government to press ahead against the Scottish Parliament’s wishes.
That brings us to yesterday's debate. With all but the Conservatives opposed, Holyrood has refused consent to the single most important legislative step on the path to Brexit. The Brexit powers dispute – and, some would argue, the status of devolution itself – has moved into uncharted political waters.
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