Emasculation of the Scottish Government Through the Adoption of Conferred Powers Conflicting With the Devolved Government Scotland Act 1998

 

 

 

 

 

 

 

Confirmation of the Intent of Westminster to Subjucate Scots is contained in the last verse of the UK National Anthem

Lord grant that Marshal Wade,
May by thy mighty aid,
Victory bring.
May he sedition hush,
And like a torrent rush,
Rebellious Scots to crush,
God Save The Queen.

 

 

 

 

The European Union (Withdrawal) Act 2018

The Devolved Government, Scotland Act 1998, was founded on the premise that EU membership would be permanent.

But Brexit has the potential to adversely impact upon the devolution settlement since the Tory Government is determined to ensure powers presently with the EU in Brussels, (to be returned to Scotland) will be held at Westminster unless and until they are transferred to Scotland.

The Scottish Government profoundly disagreed with the Tory Government approach and requested that existing lawful legislation be honoured.

This was ignored and in response the Scottish Parliament, on 21 March 2018 passed the EU (Legal Continuity Bill) preparing Scots law for Brexit.

The Tory Government, continued to ignore the Scottish Government and on 26 June 2018, Royal Assent was granted passing the European Union (Withdrawal) Act 2018, making a significant number of alterations to the current devolution arrangements.

The Tory Government has gone on to challenge the legal status of the Scottish Parliament Bill and the matter has been referred to the UK Supreme Court under section 33 of the Scotland Act 1998, to determine whether the Scottish Parliament has legislative competence to pass it.

The Supreme Court hearing is scheduled to commence on 24 July 2018.

A sad day for democracy and confirmation that devolved governance is no longer in place in Scotland.

 

 

 

 

Legislative Competence

The Bill seeks to convert EU law into UK law, to be known as “retained EU law” so that, upon Brexit, the same laws shall apply immediately after exit as applied previously.

The Bill provides, however, that Scotland is prohibited from legislating on “retained EU law”.

Scotland is to be enabled to legislate only on EU-derived domestic law and then only where this would have been wholly within the competence of the Scottish Parliament prior to Brexit.

Thus the parameters of Scottish devolved competence after Brexit are to be defined by reference to “retained EU law”.

But the scope of the term is ambiguous and matters of competence will require precedence to be set so that it can be ascertained exactly what is and what is not within the competence of the Scottish Parliament after Brexit.

Noteworthy is the absence in the Bill of the statement that Whitehall ministers shall not “normally” act in relation to devolved matters without the consent of the Scottish Government.

This has been relegated to the “explanatory notes” section of the Bill providing the Westminster Government with the ability to introduce “Secondary Legislation” across the entire range of devolved responsibilities in Scotland without the agreement of the Scottish Government.

 

 

 

Repatriation of Powers from Brussels

In harmony with the return of powers from the EU, the UK Government, justifying a need for “UK-wide common frameworks” to be established where EU law currently intersects with devolved competence, is intent on implementing the first significant roll-back of devolution since the process started twenty years ago through the adoption of a “conferred powers” model of devolution, conflicting with the “Devolved Governance, Scotland Act 1998”.

The Westminster Government has identified 153 areas where EU laws “intersect with devolved competence,” including justice and home affairs, including equal treatment legislation, cooperation in cross-border family disputes, data sharing and combating child sexual exploitation. Environmental matters (regulating air and water quality, chemicals and pesticide use) and all aspects of agriculture and fisheries.

Of concern is that many aspects of procedures for the implementation and duration of transitional “UK-wide common frameworks” are as clear as mud and Scots are expected to be satisfied with the comment in the “explanatory Notes” section (not in the Bill) committing the Westminster Government only to “work closely” with the Scottish Government identifying (but not necessarily agreeing) where there is a need to establish such frameworks.

 

 

 

Some of the Powers to be Centred on Westminster

The Tory Government revealed it does not plan to allow the Scottish Government to continue interpretating and making laws across the entire range of devolved governance under the Scotland Act 1998 after Brexit.

In this respect powers of these 24 devolved areas will be transferred to the control of UK ministers at Westminster, including:

1. Agricultural support: Farming.

2. Agriculture: Fertiliser regulations: “Regulations providing common standards for compositional ingredients, labelling, packaging, sampling and analysis of fertilisers.”

3. Agriculture: GMO marketing and cultivation: “Standards for marketing and cultivation of genetically modified organisms.”

4. Agriculture: Organic farming: “Regulations setting out standards for organic production certification.”

5. Agriculture: Zootech: “legislation providing a common framework of rules on breeding and trade in pedigree animals”.

6. Animal health and traceability: “Rules and standards that aim to maintain animal health and allow their movement”.

7. Animal welfare: “Rules relating to aspects of animal welfare including on-farm issues, movement of livestock and slaughter.”

8. Chemicals regulation (including pesticides): “Including the export and import of hazardous chemicals.”

9. Elements of reciprocal healthcare: “ensuring there are not different policies on reciprocal healthcare.”

10. Environmental quality: chemicals: “Regulation of the manufacture, authorisation and sale and use of chemical products”.

11. Environmental quality: ozone depleting substances and F-gases: “phasing hydrofluorocarbons by 85% by 2036, licence imports and exports and report on usage to the UN”.

12. Environmental quality: pesticides: “Regulations governing the authorisation and use of pesticide products and the maximum residue levels in food, and a framework for action on sustainable use of pesticides.”

13. Environmental quality: waste packaging and product regulations: Policies to set product standards in areas such as “electrical and electronic equipment, batteries and vehicles” in order to manage waste.

14. Fisheries management and support: “Policies and Regulations relating to rules relating to the sustainability of fisheries (quotas), access to waters, conservation measures, enforcement and financial support.”

15. Food and feed safety and hygiene law: “Regulations laying down the general principles and requirements of food, feed safety, hygiene and law enforcement; food safety labelling, risk analysis and incident handling.”

16. Food compositional standards: “Minimum standards for a range of specific food commodities such as sugars, coffee, honey, caseins, condensed milk, chocolate, jams, fruit juices and bottled water.”

17. Food labelling: “Regulations setting out requirements on provision of information to consumers on food labels.”

18. Hazardous substances planning: “Planning controls relating to the storage of hazardous substances and handling development proposals for hazardous establishments.”

19. Implementation of Emissions Trading System: “The scheme sets a maximum amount of greenhouse gas that can be emitted by all participating installations and aircrafts”.

20. Mutual recognition of professional qualifications (MRPQ): “Directives that create systems for the recognition for professional qualifications and experience.”

21. Nutrition health claims, composition and labelling: “Regulations and Directives on the nutrition and health claims made on food; food for special medical purposes and weight control; food intended for infants; the addition of vitamins and other substances to food; and food supplements.”

22. Plant health, seeds and propagating material: “Requirements in relation to the import and movement of plants and plant products, risk assessment of new plant pests and outbreak management.”

23. Public procurement: “Provide procurement Directives, covering public procurement contracts for supplies, services, works and concessions above certain financial thresholds awarded by the public sector and by utilities operating in the energy, water, transport and postal services sectors”.

24. Services Directive: “Directive that seeks to realise the full potential of services markets by removing legal and administrative barriers to trade by increasing transparency and making it easier for businesses and consumers to provide or use services”.

 

 

 

Henry VIII Powers and the Tory Government’s European Union (Withdrawal) Bill 2018

Described by the House of Lords Constitution Committee as a “constitutional oddity departing from the boundaries of the principle that only Parliament may amend or repeal primary legislation” the illegal inclusion of Henry VIII powers in the Bill is an affront to parliamentary democracy and a naked power grab by the Tory Government.

The powers confer on Tory Ministers, (without the approval of parliament) the right to introduce:

1. Powers by regulations to prevent, remedy or mitigate any failure of retained EU law to operative effectively or “any other deficiency in retained EU law”.

2. Powers by regulations to make such provision as they consider “appropriate” to prevent or remedy any breach of international law arising from the withdrawal of the UK from the EU.

3. Powers extend to the imposition or increase of taxation.

4. Powers by regulations make such provision as considered appropriate for implementing the withdrawal agreement if they consider that “such provision should be in force on or before exit day”.

5. Powers to “make such provision as the Minister considers appropriate in consequence of this Act”, including by modifying any provision made under primary legislation passed before the session in which the eventual Act is passed.

 

 

 

 

Implementation of Transferred Powers in the Transition Period

The “Transition Period”, expected to extend from 7 years to infinity will present a substantial increase in the workload of Westminster based civil servants, accompanied by a significant reduction in the responsibilities of civil servants reporting to the Scottish Government.

Revised powers “intersecting with devolved competence” in respect of Scotland will be adjusted (in accordance with UK guidelines) in Edinburgh (keeping the natives onside).

Facilitating the foregoing will require a reduction in the establishment of civil servants presently based at Holyrood, together with a reduction in the annual financial block grant from Westminster to Scotland.

Avoiding redundancies, civil servants, in excess of establishment will be transferred from Holyrood to a “newly leased building” located at New Waverley, Edinburgh, which will provide office accomodation and services to around 2,900 civil servants, including the recently created and greatly expanded UK Government of Scotland, executive control of which will be given over to persons as yet unknown.

The incumbent “Secretary of State for Scotland”, (Mundell) will most likely be elevated to the House of Lords.

The UK Government of Scotland sales pitch stated:

A new civil service hub will contribute to the creation of a modern Civil Service – with fit-for-purpose workspaces, cross-departmental collaboration, smarter technology, and enhanced career opportunities demonstrating the UK Government of Scotland’s commitment to engaging with and supporting Scotland.

 

 

 

Scottish Government Reaction

Scottish Brexit Minister Michael Russell said:

“The list simply confirms the UK Government’s plans for a power grab”.

“Under the EU Withdrawal Bill 2018, the UK will have the right to take control of any of the powers on the list”.

“However, the publication of the categories demonstrates the threat is most immediate in key devolved areas such as agriculture, GM crops, fishing, environmental policy, public procurement, food standards and a range of other areas.”

“Unless the bill is changed Westminster will soon be in control of these policies amounting to a major power grab and a re-writing of the devolution settlement the people of Scotland voted for so decisively.”

“I am also alarmed to see some powers included in a further category, which the UK Government says are reserved and would therefore in their view not even require consultation with the Scottish Government.”

“These include Geographical Food Indicators – vital for key Scottish industries – and State Aid which has a role in supporting our economy.”

“We do not agree, for example, that all of State Aid is reserved.”

“For the Scottish Government there is a clear principle at stake – what happens to any devolved power must be a matter for the Scottish Parliament.”

“The Parliament may decide that in some devolved policy areas it makes sense to have UK-wide frameworks, but this must be a matter for Holyrood, not the UK Government.”

“Already we have seen very worrying indications that the Scottish fishing industry may be sold out once again.”

“We are not opposed to working together on joint frameworks in some of these areas but we have been given no assurances on how frameworks will operate, who makes the decisions about them and how we would be able to ensure Scotland’s interests are properly protected.”

“The Scottish Government wants to reach an agreement with the UK Government but we cannot accept a power grab of devolved policies and are therefore proceeding with our own Continuity Bill to protect devolution.”

 

 

 

What Does Brexit Mean for Children’s Rights?

Legislative and policy decisions taken in Scotland are subject to a higher standard of review from a children’s rights perspective than their equivalents made at UK-level. The main factors are:

Children and Young People (Scotland) Act 2014

The Children and Young People (Scotland) Act 2014 places a duty on Scottish Ministers in relation to the rights of children. It requires that they must consider whether further steps are needed to secure children’s rights and, where appropriate, take these steps. Scottish Ministers are under a duty to report on what steps they have taken every three years.

The Act embeds child rights-based consideration into law and policy making in Scotland. There is no direct equivalent for decisions taken at UK level. Accordingly, this is an area of concern given the Withdrawal Bill’s approach of “pooling” repatriated powers at Westminster.

Children’s Rights and Well-being Impact Assessments (CRWIAs)

(CRWIAs) have been used by Scottish Ministers since June 2015 as part of the implementation of the duties of the 2014 Act. The aim of CRWIAs is to assess whether proposed Scottish Government policies, measures and legislation will protect children’s rights and promote the well-being of children and young people as defined under the 2014 Act.

CRWIAs have been used to scrutinise new primary and secondary legislation in Scotland, including the Carers (Scotland) Act 2016 and the Secure Accommodation Regulations, as well as developments at policy level. Impact assessments conducted for legislative and policy at UK level have been found to be insufficiently child-focused.

There is a real concern that if powers are centralised at Westminster after Brexit that decisions made shall lack the level of child rights-based scrutiny that would have been available in Scotland under a CRWIA.

 

 

 

Scotland Act 1998 and Incompatibility With Human Rights

A further concern arises in relation to protecting rights under the European Convention on Human Rights (ECHR), which is incorporated into domestic law by the Human Rights Act 1998.

Under the current devolution arrangements, acts of the Scottish Parliament or Scottish Ministers which are incompatible with the “Charter of Fundamental Rights of the European Union” are invalid. The Scotland Act therefore provides for a stronger procedural protection of human rights.

The European Union (Withdrawal) Act 2018 makes explicit that the “Charter of Fundamental Rights of the European Union” is reserved to Westminster and its regulations will cease to be a part of UK law after Brexit forcing Scots to accept a much lower standard of human rights protection.

 

 

 

Future Developments

In its “Programme for Government 2017-18,” the Scottish Government set out further steps that it intended to take to progress children’s rights in Scotland including an audit of effective ways to further embed the principles of the UNCRC into policy and legislation, including the option of full incorporation into domestic law.

The Programme also included a commitment to oppose any attempt to undermine the Human Rights Act or withdraw from the ECHR, and to ensure that existing and relevant future human rights protections provided under European Union Law were maintained following UK withdrawal from the EU.

Clearly the Scottish Government is pursuing a progressive approach strengthening human rights protections in areas of devolved competence, whilst the UK Government is intent on repealing human rights protections.

There is valid concern therefore that in retaining control over specific legislative areas at a UK-level, decisions impacting Scottish children will undergo lesser rights-based scrutiny than would have been available if they were made at Scottish level. (Maria Doyle, Assistant Research Officer, Together)

 

 

 

References:

1. Stephen Tierney, “The European Union (Withdrawal) Bill: Legal Implications for Devolution” (September 2017) (https://constitution-unit.com/2017/09/07/the-european-union-withdrawal-bill-legal-implications-for-devolution)

2. Michael Keating, “To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution.” (https://constitution-unit.com/2017/07/25/to-devolve-or-not-to-devolve-the-european-union-withdrawal-bill-and-devolution)

3. Michael Russell, Minister for UK Negotiations on Scotland’s Place in Europe. “https://beta.gov.scot/publications/eu-withdrawal-bill-letter-to-finance-and-constitution-committee)

4. European Union (Withdrawal) Bill Explanatory Notes, para 36. (https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/en/18005en.pdf)

5. Discussion Paper on Brexit and Devolution. (https://www.biicl.org/documents/1785_bingham_centre_eu_withdrawal_bill_-_discussion_paper_-_30_10_2017_-_final.pdf?)

6. Scottish Programme for Government 2017-18 (http://www.gov.scot/Resource/0052/00524214.pdf)

 

 

 

 

 

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7 thoughts on “Emasculation of the Scottish Government Through the Adoption of Conferred Powers Conflicting With the Devolved Government Scotland Act 1998”

    1. I echo that, a good and useful summary all together in one place.

      Just such a pity the overall aspect is so dismal. Holyrood clearly put s Westminster to shame once again.

      Like

      1. The thanks are due to you, CJ, you’re the one who did the work of setting this all out in an orderly fashion and so providing a useful reference point 🙂

        Like

  1. This is a seriously Orwellian prospect. I had been taking refuge in the protection of Scots Law under the Treaty of Union and the sovereignty of the Scottish people but now I’m really worried

    Like

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