20 June 2016

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?


  1. Citizenship of the EU. Who grants it and who withdraws it? Do I retain it in the event of Brexit?

    1. It was originally created by the Treaty of Maastricht, an treaty that amended the previous treaties and founded the EU, in 1993. It now finds its legal basis in Article 20 on the Treaty of the Functioning of the European Union (TFEU), one of the two main treaties (the other being the Treaty on the European Union, TEU) that govern the EU.

      "Article 20

      (ex Article 17 TEC)

      1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship."


      It is *in addition to* citzenship of an EU member state and does not replace national citizenship.

      If the UK withdraws from the EU, and you are a British citizen (and only have British citizenship, not citizenship of another EU member state), you cease to be an EU citizen from the moment of withdrawal.

      Once that happens the rights that derive from EU citizenship cease to apply.

      This is a summary of those rights:


  2. Citizenship of the EU is given by the fact that the UK is a signatory to the Treaties establishing the EU. I am sure that Brexit will result in loss of that + loss of rights associated with it such as freedom of movement. I will be interested to see if anyone as a supportable view to the contrary.

    1. That Citizenship once conferred creates an individual right which has been enjoyed in my case for over 40 years. I believe that itself constitutes a continuing right which should not be removed against my will. I accept those born after a Brexit would be in a different position. However more clarity would be welcome.

    2. Maybe you should just forget about the idea of citizenship. There's no realistic or legitimate European demos. Why should there be a European citizenry? Perhaps if you can afford to go to the European Court of Human Rights to have your rights upheld, then the concept means something. Most people, however, depend upon national institutions.

      You wouldn't say that you were a "citizen" of the World Trade Organisation or Nato. Even Catholics or Trotskyists (now we're getting serious) didn't claim to be citizens of an international bloc, though their affinities were far more profound than identifying with the blue and yellow rag, and cheap sentiments, of the EU.

    3. Yeh Joseph Roth was before us - “My most unforgettable experience was the war and the end of my fatherland, the only one that I have ever had: the Austro-Hungarian monarchy,” he wrote in 1932. “I loved this fatherland,” he continued in a foreword to The Radetzky March. “It permitted me to be a patriot and a citizen of the world at the same time, among all the Austrian peoples also a German. I loved the virtues and merits of this fatherland, and today, when it is dead and gone, I even love its flaws and weaknesses.”

  3. UKIP policy is to strip Hollyrood of all but the most basic legislative and administrative powers. With UKIP to Tories its like the old saying about the drunk man's words being the sober man's thoughts.
    If Leave wins Scotland will be dragged out of the EU and backwards to an almost pre-devolution status.
    The existence of the Hollyrood will be meaningless. Remember also that the Scottish Office has wide power to over rule the Scottish Government. There will be a great deal of glee for the Westminster Government as those powers are used.
    But what of a second independence referendum? I feel certain that Boris Johnson Prime Minister's government will do everthing in and beyond it's legal powers to prevent one ever being conducted. If the SNP tries who will the Police in Scotland obey Edinburgh or London?

    Imagine the SNP trying to hold a referendum against the will of Westminster who immediately strips all SNP MSPs of their seats. Who is the remaining biggest party? Isn't it more likely the SNP would back down.
    Scotland will be on it's own with no believable scenario of anyone outside raising the slightest objection particularly not the Americans.

    1. Police Scotland reports to Holyrood. If they are sworn it is to the monarch like the military. A UDI doesn't automatically create a republic. So the polis have no basis to disobey.

      If it is a UDI due to complete frustration of our democratic options I'm on the first train to Auld Reekie to join the human cordon around Holyrood to prevent it being shut down. Call CNN, RT, France Presse etc get the cameras of the world there and dare whoever, the police, or more likely the military (not a Scottish regiment) to do their worst to a line of civilians under the gaze of the world's live TV cameras.

      Bring it on say I.

  4. https://www.dissentmagazine.org/online_articles/left-case-brexit I wonder if anyone connected with the SNP actually reads widely or thinks critically?

    The left-wing case against the EU is overwhelming, robust and intellectually coherent - something the increasingly dreadful Sturgeon is not.

    I'd make this point. The SNP do not own my vote, nor my mind. The lack of any debate within the SNP is worrying to see. Not a single MP or MSP diverges from the simple-minded groupthink that the EU is "progressive" and the implication that if one disagrees that you are acting against the interests of Scotland or Scottish independence.

    I for one strongly object to this unpleasant experience/undertone. Where is the sign of open debate and intelligent disagreement within SNP circles. If the 'dear leader' cannot and shouldn't be questioned under any circumstances what feedback mechanism exist to correct mistaken thinking on the 'dear leader's' part?

    Just as the SNP do not own the votes of independence supporters, nor do they own Scottish independence or sovereignty - but act as if they do. It's deeply problematic

    1. Why should MSPs go against their consciences just to satisfy what you think should happen? the Greens are for Remain, SLAB are for Remain, only a couple of crusty Tories aren't and you focus just on the SNP.

      Note I'm no SNP tribalist, did not vote for them in either vote in the last election. Didn't vote unionist, just didn't vote SNP.

  5. Even if Europe’s left parties do succeed in forging a common program, the EU is not the kind of political entity whose approach to the world can be altered by popular politics. Popular politics is precisely what the EU was designed to obstruct. Like independent central banks and constitutional courts, its institutions are essentially technocratic. Technocracy is not (as some like to pretend) a neutral or rational system of government. Instead, it confers immense power on culturally select bodies whose prejudices will be those of the class their members are drawn from. The SNP, nor the Labour party will ever offer a referendum on the EU.

    A reformed EU is not on the ballot paper, nor will it be reformed in any significant way in the future. A hypothetical indy-ref is not the key issue.

  6. On the SNP – it badly needs to raise its game on every front. Virtue signalling about ‘evil Tories’ and screaming ‘it’s our pound too’ is simple-minded pish that will not win over small u Unionist Scotland. Bovine conformity on all matters will not win over small u Unionist Scotland, a cult of the ‘dear leader’ will not win over small u Unionist Scotland. And jumping upon Project Fear the Goldman Sachs version (change is too risky) is utterly useless politics. Cheerleaders for idiocy does the cause of Scottish independence no favours at all.

  7. For whom are you cheerleading Joe? Do you really feel the need to copy and paste the same comments across more than one pro independence blog? You don't give any impression that you're at all interested in independence.

  8. Interesting. What's your take on this?


    I must confess I find myself more on your side than that of James (normally I find myself thinking the reverse) but it's interesting all the same.

  9. '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.'

    Does this not mean that Scotland would have complete control of fishing in Scottish Water and of the Scottish Fleet in UK Water? If so is that not reasonable?

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