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IT looks like the Scottish and UK governments will end up in the Supreme Court arguing for their different interpretations of how post-EU cross-border policies should be handled.
The UK government wants to retain powers to deal with cross-UK policies in 24 areas that were designated as devolved in the 1998 Scotland Act.
The UK government would seek Holyrood’s consent and if it isn’t given within 40 days the UK government will “not normally” proceed, but could, with the agreement of the House of Commons and the Lords, overrule the Scottish Parliament.
The Scottish government, with the support of the other parties except the Tories, doesn’t trust the UK government not to impose policies on them that the Scottish Parliament opposes. And the UK government doesn’t trust the Scottish government not to create unnecessary conflicts.
After several meetings of the joint ministerial committee failing to find agreement, Secretary of State for Scotland David Mundell has decided that “a third way” is needed, though he is “not clear” what it would be.
This issue has not sneaked up on us, but has been a potential problem since the original devolution deals and has been further magnified as each new set of powers was devolved.
It doesn’t seem to have been understood that the introduction of a Scottish Parliament and a Welsh Assembly always had implications for the UK as a whole.
Because the devolution of powers has been piecemeal and usually a quick-fix response to immediate political pressures, there was no UK-wide buy-in.
There was no collective understanding or vision about the benefits of a UK made up of parliaments and assemblies and how it would work.
Instead of adopting a democratic, federal structure to enable cross-border arrangements, UK governments continued with the Westminster Parliament as if nothing had changed.
It first ignored the West Lothian Question, and then as a sop to English voters, adopted the meaningless legislation of English votes on English laws.
If the UK had not been in the EU when devolution was introduced in 1999, structures would have had to have been put in place to manage cross-UK policies.
Instead EU membership served to limit how much divergence there could be between the home nations, as many of the decisions taken in Westminster, Holyrood, Cardiff and Belfast were constrained by EU rules and regulations. The different UK nations were obliged to be aligned because of EU membership.
Jeremy Corbyn pointed out in his Coventry speech in February: “As we change our constitutional relationship with Europe, we must also adjust our own arrangements. Just as many felt that power was too centralised and unaccountable in Brussels, so many feel that about Westminster.” And he didn’t just mean Scotland and Wales; he meant the regions of England.
In order to achieve a progressive Brexit we have to ensure that we have class unity that cuts across nations and regions, but at the same time allow powers to be devolved to the level most effective for democracy, transparency and accountability. Not an easy circle to square.
That is why we badly need the constitutional convention as promised in Labour’s manifesto. I would argue that we cannot wait for a Labour government before starting this process; we need an agreed approach to take into the next election campaign.
Whatever the outcome of the tussle between the SNP and Tory government, we have to be wary of any solution that involves the establishment of ministerial or Civil Service committees.
Such bureaucratic solutions are likely to replicate the EU Commission by being technocratic, insular, power-hungry and closed to public scrutiny.
It is vital that we think through democratic structures for cross-UK decision-making that take account of the devolved parliaments and assemblies and create democratic structures for the regions of England.
We do not want to find that having been released from some of the restrictions of the EU, we are then subject to their imposition by a UK Tory government.
When we look at the devolved institutions after Brexit we need to think further than a list of powers and consider what structures we need to ensure that our economy is democratically accountable, that enables the redistribution of wealth between the regions and nations and that facilitates class solidarity.
This could involve the abolition of the House of Lords and its replacement with an elected senate of the nations and regions.
One thing is clear: when powers are repatriated, unless there is the political will to do things differently, we will find that the implicit ideology of the EU is repatriated along with the powers.
Getting the best out of Brexit will involve radical change, and we know that the Tories won’t deliver it. We have to work together through political and trade union action and in communities whose needs are ignored to ensure that we win a workers’ Brexit not a Tory Brexit.
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