The UK’s devolved nations could be the rocks upon which a Brexit deal is wrecked, writes Murray Ritchie.
For months Scotland and Wales have been complaining that Theresa May’s approach to Brexit is a crude attempt to snatch back authority devolved to Edinburgh and Cardiff – a “naked power grab” in the words of Carwyn Jones, the Welsh first minister.
Nicola Sturgeon, his Scottish counterpart, agrees and claims the Tory Brexit strategy is a “developing disaster”. She is also warming to a second European referendum.
Ms Sturgeon recently told Sky News that a second EU referendum was not Scottish National Party policy, but added: “I think that argument may well gather force and become hard to resist in the future”.
Of course the devolved government leaders are but mere party politicians. They can be expected to make hostile and combative criticisms on major issues where there is disagreement when they are in opposition.
It is only when more detached and objective figures side with them that we begin to wonder seriously if they might have a point.
Step forward Lord John Kerr, once the UK’s most eminent diplomat and now a compelling cross-bench voice in the House of Lords. In his Brussels heyday he was Britain’s most respected and experienced negotiator. It would take a brave prime minister to brush aside his views on Brexit.
Lord Kerr, who wrote Article 50 which governs the Brexit process, is not even close to being a fan of the UK strategy. Indeed, he has already said he wants it halted because be believes it will lead to “disaster”. This is not normal diplomatic talk, to put it mildly.
Now Lord Kerr is accusing the Westminster government of trying to break the founding principle of the devolution settlement.
This comes just as Scotland and Wales celebrate 20 years of decentralisation of the UK state during which time the devolved powers have become embedded in Edinburgh and Cardiff where they are jealously guarded.
Lord Kerr believes Brexit legislation flies in the face of devolution.
The EU deals only with national governments and not regional authorities.
In unusually undiplomatic (for a diplomat) terms he is lining up with the Scottish and Welsh governments and figures such as Michael Russell, the Scottish Brexit minister, who claims the Tories are planning to sell Scotland’s farmers and fishermen down the river in return for trade deals.
Mr Russell believes the UK government would, for example, sacrifice regulations over food quality if it meant securing a trade deal. For this to happen Westminster would have to claw back Scotland’s devolved powers over agriculture and fisheries.
Such a move would break promises made repeatedly by UK ministers pledged to honour devolution as it exists now if and when the UK finally leaves the EU.
David Mundell, the Scotland Secretary, has insisted no powers will be taken back by Westminster and Mrs May has supported this view.
But the issue is not quite that straightforward which is why there is great suspicion of Westminster’s motives. Those powers repatriated to the UK will not go automatically to Edinburgh and Cardiff but, in the first instance, to Westminster. The EU deals only with national governments and not regional authorities.
Might these powers be altered or weakened by Westminster before they are sent back to the devolved nations? Could they be watered down in the interests of a Brexit deal? In theory that seems perfectly possible.
Lord Kerr, who wrote Article 50 which governs the Brexit process, is not even close to being a fan of the UK strategy. Indeed he has already said he wants it halted because be believes it will lead to “disaster”
Lord Kerr’s view as explained to Holyrood’s European committee is that the fundamental principle of devolution is that all powers not specifically reserved to Westminster are automatically devolved. He thinks this principle has for the first time been broken.
He told members of the Scottish parliament that the UK’s Withdrawal Bill which would facilitate Brexit would probably have to be altered because of the devolution issue.
If the UK government did retain and change powers for a period in areas like fishing or environmental protection, he said, then “that concept has for the first time been broken in my view.
“That is why I think that bit of the bill will be changed in the Westminster parliament because it does seem to me to be fundamentally important.”
Meanwhile Brexit continues to torture the Tories and the campaign for a second referendum and/or a soft Brexit is gathering pace. Mrs May’s dismissal, so far, of devolution’s significance is coming back to haunt her.
Lord Kerr is not alone in doubting if a majority can be found in the Commons for the government’s final version of Brexit, hard or soft.
That way lies the possibility of a general election within 18 months – and that is the last thing the Tories in their current state of near civil war want to hear.