AN unstoppable force met an immovable object in a Glasgow hotel room yesterday. Theresa May said in her East Kilbride speech that the UK united was an “unstoppable force”; to which the obvious response is that it’s run up against an immovable object in the form of the First Minister, Nicola Sturgeon, who has called for a repeat referendum on independence. Mrs May refused to talk about a second referendum yesterday, while the First Minister wanted to talk about little else.
Scottish Brexit Minister Michael Russell claims the UK Government has refused to discuss not just the referendum but also the Scottish Government’s White Paper, Scotland’s Place in Europe. It called for Scotland to be allowed to maintain links with the EU single market, much as this week’s European Parliament’’s Constitutional Affairs Committee report suggested might be possible.
The UK Government doesn’t buy that. But Mrs May claims that discussions have taken place and that Scotland’s interests will be taken fully into account in the Great Repeal Bill, published on Thursday. There are reports that the Prime Minister has offered the First Minister “temporary powers” under a Henry VIII clause, no doubt to be called the “Queen of Scots clause” .
This clause allows the Prime Minister to alter or amend laws by proclamation, without requiring parliamentary approval. It is so called after the Tudor monarch’s “Statute of Proclamations” of 1539, which allowed Henry to make up the laws of the land as he went along. The statute was repealed on his death.
The Great Repeal Bill is expected to include a Henry clause allowing Number 10 to sift through the thousands of directives and regulations passed over 40 years by Brussels and accept or repeal them by proclamation. Anything important, like the single market or immigration law, will be dealt with in a parliamentary bill. For matters like food labelling, the Government will issue executive orders amending or importing Brussels laws onto the UK statute book.
There are understandable anxieties in handing such a clause to a Prime Minister who tried to push through Article 50 under royal prerogative. Labour says this will give Mrs May “dictatorial” power, not just on food labelling but anything from nuclear waste to GM crops.
This is of particular concern for Scotland as all laws passed by the Scottish Parliament have to be in accordance with EU law; otherwise they are not laws. Lawyers have been wondering what will happen when European law is extinguished by the Great Repeal Bill. Do EU laws all go to the UK Government since it is supplanting Brussels? Or would laws on devolved areas such as agriculture naturally gravitate to the Holyrood Parliament? No one really knows.
Under the 1998 Scotland Act, only reserved powers such as defence and foreign affairs are itemised and the assumption hitherto has been that anything not listed in Schedule 5 is under the remit of Holyrood by default. But that could in theory give Holyrood a vast range of new powers held at Brussels.
A Scottish Henry VIII clause might alter the Scotland Act by specifying for the first time exactly what powers the Scottish Parliament has, instead of just those reserved to Westminster. The carrot is that the First Minister will be able to use powers of proclamation to make her own dictatorial changes.
SNP supporters remember Henry VIII mainly for the “Rough Wooing”, his 16th century war against Scotland. They wonder what pressures might be placed on Scotland as Sewel motions no longer give Holyrood a block on changes to its powers. The Scottish Parliament will have its say today as MSPs vote on a second referendum and throw down a challenge to Brexit 24 hours before Article 50 is invoked. Buckle up people; the collision is imminent.
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