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Scotland and London: a constitutional crisis over Brexit? Theresa May and Nicola Sturgeon at Bute House, Edinburgh (July 2016). Photo: Number 10 (Tom Evans/Crown Copyright) (CC BY-NC-ND 2.0).
Last week the Scottish parliament in Holyrood rejected the Brexit or European Union Withdrawal Bill, drawn up by the Theresa May’s Conservative government. And it did so with the support of the ruling SNP, the Labour Party, the Liberal Democrats and the Scottish Greens, in other words, everyone bar the Conservatives: 93 votes to 30. Although it constitutes a non-binding parliamentary decision, in the event that London does not accept the vote –and it has already said that it has no intention of doing so– it will be the first time since the creation of the devolved administration in 1999 that the British government has ignored the will, or the consent –essential terms in this debate– of the Scottish parliament on matters that affect its powers. But it is also the first time that Scotland has rejected a bill that the British government wants to push through come what may. Although consent may not be enforceable in the courts, the situation could lead to a constitutional crisis, providing the Scottish nationalists with ammunition to call for a new independence referendum. It is another clear case of how the UK embarked on Brexit without fully anticipating its problems and fallout.
In essence, a majority of Scottish lawmakers want a substantial number of the 24 powers that the UK is going to regain from Brussels post-Brexit to be wielded by Scotland, and to prevent the opposite: that London uses Brexit to strengthen its control –a ‘power grab’ in the words of the First Minister, Nicola Sturgeon– over Scotland. The May government has another proposal: for a period of five years (before it was going to be seven), while it is decided who is going to do what, it will be London that discharges the powers concerned to ensure a single market and ‘common frameworks’ in the UK, albeit in consultation with Wales, Scotland and Northern Ireland. But Sturgeon is not impressed by consultations. She wants the Scottish parliament to explicitly endorse any change prior to it being applied and to prevent London using this device to regain powers over Scotland. Holyrood was happy for them to be wielded by Brussels, but not Westminster. The Scottish parliament had previously passed a Continuity Bill to safeguard its powers in the event of no Brexit deal being struck with London, something the Westminster government is challenging at the Supreme Court. If there is no meeting of minds –attempts will be made, although there is little time left because the House of Commons is scheduled to pass the Withdrawal Bill in the next few weeks, following its troubled passage through the House of Lords– the matter could end up in the Supreme Court. Wales by contrast gave its blessing, with some amendments.
The 24 powers that are going to be repatriated if Brexit materialises relate to areas directly impinging on Scottish interests, such as fishing quotas, farming subsidies, biotechnology and genetically modified organisms, products and exports such as whisky, financial services and state aid to industry, among others.
It is not simply an argument about the way the powers are managed; the systems favoured by the Scottish nationalists and the British Conservatives are also very different. The former tend more towards social democracy, for want of a better description. The latter are more neo-liberal. Scotland has its own system of financing education, there have been no steps towards privatising the health service, the elderly are given free care, etc. In other words, the differences are not only about who manages what, but also to what end.
It is worth remembering that in the Brexit referendum the Scots voted almost two to one to remain in the EU; and one of the factors in the referendum on independence, an option that was finally rejected, was the desire to remain in the EU, because after independence the Scots would have had to go to the back of the queue to request readmittance into the Union. There can be no doubt that Brexit is going to affect the way in which the UK remains united.