Consent was sought from both legislatures following the convention (usually referred to as the Sewel convention) that the UK parliament will not normally legislate in devolved areas, or alter devolved powers, without their agreement. The Withdrawal Bill alters the devolution settlements by placing a new constraint on devolved legislatures and ministers to avoid acting incompatibly with ‘retained EU law’, even in policy fields which otherwise fall within their remit. In its original form, this constraint was placed upon all retained EU law, with provision to release the constraint once it was agreed that there was no need to preserve a common UK or GB legislative or regulatory framework. In its amended form, the Bill requires the UK Government to specify in regulations the areas to which the restriction will apply. It introduced a time limit – UK ministers have two years from Brexit day to bring forward new regulations, and these would last for no more than five years. The amendment also places a duty on UK Ministers to await a ‘consent decision’ before tabling the regulations, but herein lies the controversy. Whereas the Sewel convention assumes that consent means agreement, Clause 15 empowers UK Ministers to proceed even if the ‘consent decision’ is to withhold consent.
The Scottish Parliament’s decision to withhold consent for the Bill has sparked suggestions that a constitutional crisis looms. But is this a constitutional crisis or a constitutional headache for the UK Government, or simply an irrelevant sideshow that they can afford to ignore? The answer to that question depends upon the steps the UK Government and parliament now take, and how parties and the public react to them.
One option - let’s say the ‘normal’ course of action, in line with the convention - would be to remove the offending paragraphs of clause 15 which affect Scotland, freeing the Scottish Parliament to legislate for itself. Indeed, the Scottish Parliament has already passed its own Brexit legislation to plug that gap. But the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is awaiting a ruling from the Supreme Court on its legality, after being referred by the UK Government. Moreover, having failed to reach agreement with the Scottish Government following months of intergovernmental negotiation, the UK Government is unlikely to simply change its mind now that the Scottish Parliament has had its say.
The Scottish Parliament’s decision to withhold consent is, first and foremost, a matter for the UK Parliament. The Lords has already allowed the Bill to complete its passage despite the lack of Scottish Parliament consent. It is now up to the Commons to determine whether the withholding of consent should lead to further changes, but government intent and parliamentary arithmetic will shape its decision.
The second option, then, is to ignore the Scottish Parliament’s decision. The Prime Minister has already indicated that she intends to go ahead with the measures set out in Clause 15, on the basis that they are necessary to secure the integrity of the UK internal market. Legally, she is entirely within her right to do so. As the Supreme Court made clear in the Miller judgement, the Sewel convention is a matter of politics and has no legal effect. But there are several reasons why this option may be problematic.
First, the Withdrawal Bill is just the first in a long line of UK Brexit-related legislation, much of which will affect devolved competence. These would, in line with convention, require the consent of the devolved legislatures. Ignoring the Scottish Parliament on this occasion - and undermining its status in so doing – is unlikely to prove amenable to securing consent in the future. The prospects of a prolonged constitutional headache are evident.
Second, irrespective of the destiny of the EU Withdrawal Bill, Brexit will create a more complex system of multi-level government in the UK, with more interdependencies between what is reserved and what is devolved. Removing the umbrella of EU regulations will require the UK and devolved governments to cooperate more routinely and systematically than was envisaged when devolution was introduced. Again, ignoring the Scottish Parliament’s voice now is hardly conducive to fostering cooperative relationships for life after Brexit.
Third, the decision of Labour and the Liberal Democrats to vote with the SNP and the Greens has given the vote greater legitimacy and left the Scottish Conservatives isolated and exposed. The Conservatives were the only party to campaign against devolution in the 1997 referendum. That followed the 18 long years of Conservative rule when the Tories strongly resisted growing demands for a Scottish Parliament. It has been a long road back from the electoral wilderness. The Scots Tories have clearly made gains from their unambiguous opposition to independence. Being seen to undermine devolution could see some of these gains fall by the way side.
There is, of course, a third way. The UK Government could continue to negotiate with the Scottish Government to try to reach a compromise. In so doing, it may want to be mindful of the considerable powers it already has at its disposal to preserve and protect the UK internal market after Brexit. It might also consider whether the tried and tested ways of passing UK legislation in devolved areas, with the express consent of the devolved legislatures, may be a more effective route towards restoring trust.