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Well, More Powers for the Scottish Parliament As Far As I’m Concerned

The terms ‘Brexit’ and ‘sound-bite’ are, to my mind, synonymous with each other.  Very complex and, dare I say, once in a generation issues are reduced the lowest and simplistic terms.

The entire debate around Brexit has been peppered with, if not characterised by, sound bites.  The sound bites seem to have gone into overdrive in the last week or so as the debate has heated up around the common market and/or customs union on one hand and the impact of the Great Repeal Bill on the devolved nations on the other.
On the former, we have gone from the sublime to the ridiculous.  Describing Liam Fox’s proposal in relation to trade as akin to “giving up a three course meal on the promise of a packet of crisps” was the pithy but telling summation by Sir Martin Donnelly.  The ridiculous was of course David Davies powerful [sic.] rebuttal of detractors by saying that Brexit will not plunge Britain into a Mad Max dystopia – he certainly set the bar high there, eh?
Sound bites have also played a significant role in the debate in relation to the devolved nations.  The Tories have, to my mind, quite rightly been accused of using the EU Withdrawal Bill as a “power grab” by the devolved nations; while the First Minister has said she is only seeking to “protect the powers that the Scottish Parliament already has”.

Her latest attempt to do so is in the form of the  introducing the short and snappily entitled UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.  
The entire debate in relation to the devolved nations is therefore about how the current devolved settlement squares with European Law and the powers returning to the UK from the EU.  

But I personally think that this is looking at the problem through the wrong end of the telescope.

Brexit has of course routinely been compared to a divorce.  But in the context of devolution it is actually the UK Government and the Scottish Government who are fighting over who gets the “fisheries CD collection” and who keeps the “food standards crockery set”.
I think they are all missing something.  Are they not being too simplistic and too “sound-bitey” in this context?
Is it not altogether more fundamental than that?
Any attempt to debate the powers coming back from the European Union and how they fit into the current devolution settlement is, in my view, fundamentally flawed.  It ignores the legal, political and constitutional realities that lay behind both our membership of the European Union and those that existed in 1998 and the creation of the Scottish Parliament.    It ignores the complexity and, frankly multiplicity, of the constitutional framework within the United Kingdom.
We have all heard it said that the UK does not have a written constitution and what it really comes down to is the sovereignty of Parliament.  So, that’s that, then?   Not quite, I would say.  Not at all, in fact.
The reality is that there have been some Acts of Parliament that possess the characteristics and legal impact of a “constitutional” arrangement.  The general rule of parliamentary sovereignty (under the glorious unwritten constitution) directs that a Parliament may not bind its successors.  But there have been a few Acts of Parliament that, legally and constitutionally, done exactly that.  
The European Communities Act 1972 clearly falls into that category.  The point is now well established in European and UK Law.  In UK terms, there are several high profile cases that establish the point.  

One of the first was a Thompsons case.  It was actually a case of dad’s.  The case was Litster v Forth Dry Docks.  It was case on TUPE and the need for UK Regulations to comply with EU Law even if that means interpreting the UK regulations significantly beyond their natural meaning.  

The leading case in fact is a series of cases called “the Factortame cases”.  [R(Factortame Limited) –v- Secretary of State for Transport].  The second of the series, known as Factortame II from 1990 established that sections of a UK Act of Parliament must be disapplied (and therefore not followed by the Court) if they contravene European Law.  In the particular case sections of the Merchant Shipping Act we’re disapplied.
Factortame relied heavily on a case that went to the European Court in a dispute between a private company and the Dutch Government.  The case was called Gend En Loos.  The Court expressed the unequivocal position as follows:-
“The community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights.”
And that is the very heart of the matter as far as I am concerned.  

The UK Government in joining the EU (for the duration of their membership of the European Union) limited and gave up to some extent their sovereign rights.  That should be no surprise to anyone.  In many ways, the clear legal proposition set out in the Dutch case and followed by the UK Courts in Factortame was at the heart of much of the popular debate around the Brexit Referendum.
The Scotland Act itself is “constitutional.”  Nevertheless, there are very important legal areas which at the time that the Scotland Act was being discussed, negotiated and drafted were not in any real sense within the power of the Parliament at Westminster.  There are powers which, therefore, on the face of the Scotland Act 1998 were “reserved” Westminster but in reality were in fact “reserved” to somewhere else entirely.  That is to say they were reserved, under the European Communities Acts, to the European Commission, European Parliament and European Court.  As explained in the Gend En Loos case they were powers in relation to which the UK Parliament had chosen to limit their sovereign rights by signing up to the European Union.
There were powers which weren’t on the negotiating table at the time of the Scotland Act because they weren’t frankly even in the room.
As far as I am concerned we therefore have to look at these powers in an entirely different way and in relation to which the specific wording of the Scotland Act is not helpful.  It is not about how they fall into the schedule of matters reserved to Westminster or the powers accepted as being devolved to the Scottish Parliament under the Scotland Act.
It is about starting the entire negotiation again in recognition that Brexit has not only fundamentally changed the UK but it is also fundamentally changed the devolution settlement.
Those keys areas must be considered and debated maturely in the spirit not only of the discussions in 1998 but also the subsequent events including “the big promise” made in the lead up to the Scottish Independence Referendum.  In that context, there will be powers which are on the face of the 1998 Act reserved to Westminster which can and should in my opinion be devolved to the Scottish Parliament because they were never really in the hands of Westminster in the first place.
The powers that I am particularly talking about are those that were at the heart of the “social dimension” to the single market.  I am specifically talking about Health & Safety Law and all elements of employment rights legislation including, of course, collective rights and equalities.  
In relation to certain powers it is time to stop the constitutionally flawed debate around how they may be shoe horned into the current devolved settlement and instead to look at the devolved settlement anew and take a view upon which Parliament should have control over powers that were never in reality held by the Westminster Parliament when Scottish Parliament was established.
I may summarise by position as follows:-
Westminster Parliament were happy to give up their sovereign rights to health and safety and employment rights when we joined the European Union so why should they have any difficulty in giving over the sovereign rights to those areas to the Scottish Parliament under a new and mature devolution settlement?

Blog by Patrick McGuire, Partner

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