What would Brexit mean for devolution?

As we hirple towards the EU referendum finish line, I'm often asked a question. What would a Brexit vote mean for devolution? If we crash out of the European Union, would Holyrood - in a trice - become more powerful? The Lord Chancellor, Michael Gove, toyed with this kind of rhetoric last week, claiming that unprecedented immigration powers would be devolved to the Scottish Parliament, in the event of Brexit.  If you'll believe that -- you'll believe anything. Disembark from the banana boat which brought you up the Clyde. Check the back of your head for buttons immediately. 

But a similar argument was made back in February by Drew Scott of the University of Edinburgh.  Scott highlighted that, at present, a number of devolved issues - including environment, agriculture, fisheries and social policy - are guided by EU law. He suggested that "if the UK leaves the EU, then by default these powers will come back to the Scottish Parliament, not to the UK."

Is he right or wrong? And if so, why so? Show us your working. Let's start with the short version: for the main part, no, it isn't true. A Brexit vote on Thursday - in and of itself - does next to nothing to strengthen the powers of the Scottish Parliament. Nowt. Zip. Nada. Now - as always - we are subject to the whims of the majority in the House of Commons, which now - as always - ultimately decides what powers Holyrood will and will not be trusted with. Now - as always - this will be decided by the UK majority in Westminster. 

So how does it work? Here, things get a wee bit more complicated. Under section 29 of the Scotland Act, Holyrood's legislation must comply with EU law. That's why, for example, the Scottish Government's minimum alcohol policy could be challenged. Whisky manufacturers argue that it represents an unjustifiable interference in Europe's common market in liquor, indirectly discriminating against European companies, able to sluice out wine on the cheap. The case continues.

But that's not the only thing which limits Holyrood's powers in fields dominated by pan-European regulation.  The Scotland Act doesn't list all the issues which the Scottish Parliament has control over. Instead, the legislation knocks that logic on its head. It lists only those topics which Holyrood can't legislate about. You find all this in Schedule 5. We call these "reserved matters" - and if you take a look at them, you'll see that in most of the areas identified by Professor Scott, there would be limited or no "automatic" strengthening of Holyrood at all, even if EU law was disapplied.  

Take the issue of fishing, for example -- a hot button. Under C6 of Schedule 5, the "regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats)" is a reserved matter.  It will remain so unless and until Westminster removes this restriction. The same goes for many other areas of policy. With some limited exceptions, for example, equal opportunities remains reserved, despite agitation for its devolution in the last Scotland Bill. Head H reserves employment law to Westminster, including the minimum wage, trade union legislation, the Employment Rights Act, and so on. MPs decided that these should continue to be decided by MPs -- despite calls for their devolution as recently as last year.  

Professor Scott's point is more convincing when it comes to agriculture and environmental policy -- neither of which feature prominently in the list of reserved matters. But competency without cash is a paper power. Will future UK governments match the agricultural subsidies which the EU Common Agricultural Policy has used to support the industry of our farmers? Will an austerity government become big rural spenders? Who knows?

The idea that you can  - in a trice - "automatically" empower Holyrood across all these categories of governmental policy by leaving the EU is a naive fantasy. And that, before we get into the regulatory harmonisation which might be necessary if a weakened Brexit Britain is to cut the sort of trade deals with the rest of the bloc.  Your guess is as good as mine about what the majority in Westminster would during during a post-Brexit interregnum.  I don't know about you, but as a Scots lawyer, concerned with the powers of devolved parliaments and assemblies, I don't find the idea of "restoring" Westminster sovereignty over these fields terrifically reassuring. It is the usual grisly rhetorical prelude, anticipating bitter medicine. Pass the catheter. 

The only folk you can be sure you are empowering is the Conservative majority in the House of Commons. And despite their infighting, their backbiting and their bitter internal tribalism -- there remains precisely no indication they are on course to lose the next general election, or the next.  Nor is there any indication that Mr Cameron and his allies -- or Mr Johnson and his allies -- have the slightest interest in allowing Scotland to diverge from Westminster on workers' rights, equality, or immigration. Don't take my word for it. Just cast your mind back to the debates and votes on the last Scotland Bill, when Tory MPs trooped biddably though the lobbies again and again to shoot down  substantive SNP amendments. 

I don't know about you -- but this seems like a remarkably powerless, unreliable, risky way of "taking back control" over these areas of social policy to me. 

Now, you may well believe that after Brexit, everything will be different. You may believe that with Brexit, everything is possible. And in the most abstract, theoretical way -- for sure. But a sober worldly politics can't let itself be dazzled and distracted by abstract possibilities. Let's look at the probable, as well as the possible. Let's be tutored by our own experiences. Let's consider the social forces, actually in play. Let's contemplate who is actually likely to be empowered by crashing out of the EU. 

After all: who you gonna believe, Michael Gove, or your own lyin' eyes?