The UK government is challenging Scottish and Welsh Brexit legislation in a deepening constitutional dispute over who should have the final say on policy in areas such as fishing and farming when Britain leaves the EU.
Government legal officials said on Tuesday they were asking the Supreme Court to rule on the constitutionality of emergency laws passed in March by the Scottish and Welsh parliaments that cut across the UK’s own EU withdrawal bill.
The laws give Edinburgh and Cardiff control over areas such as fishing, farming and some aspects of environmental policy. These powers were devolved in 1999 but have been exercised by Brussels as part of the UK’s membership of the EU. Theresa May’s government argues that it must have the final say over some areas of devolved policy in order to preserve the UK’s internal market.
The case risks complicating Britain’s preparations for leaving the EU and could have important implications for the UK’s devolution settlement and the negotiation of future international trade deals.
“This [Scottish and Welsh] legislation risks creating serious legal uncertainty for individuals and businesses as we leave the EU,” said Jeremy Wright, UK attorney-general, adding that referring the matter to the Supreme Court was “a protective measure” taken in the public interest.
Jo Maugham QC, who founded the Good Law project and has been instrumental in bringing several Brexit court challenges, said the case was significant because it would clarify whether powers on areas such as agricultural policy would be repatriated to Westminster or to the devolved governments after the UK leaves the EU.
“The devolved governments may be quite anxious to protect their competencies and it is a concerted attempt to assert a legal basis for those competencies. It’s like another battle in the war around the devolution settlement,” he said.
The Scottish and Welsh administrations have accused Theresa May’s government of attempting a “power grab” by rewriting the 1999 devolution settlement in the EU withdrawal bill without their consent.
The UK government has accepted that the EU withdrawal bill must be amended to address the concerns, but has been unable to agree new wording.
Michael Russell, Scotland’s minister for Brexit talks, said the Scottish government still hoped the UK bill could be amended.
“Our continuity bill is an important and necessary piece of legislation to prepare Scotland’s laws for Brexit while protecting the powers of the Scottish parliament that people voted for,” he said.
The constitutional uncertainty surrounding the Brexit legislation was reflected further by the Scottish parliament’s presiding officer, who said he did not believe Holyrood had the right to pass the Scottish law because it touched on non-devolved matters. However, the Welsh assembly’s presiding officer concluded that the Welsh law was within its remit.
David Mundy, partner in the government and infrastructure department at Bircham Dyson Bell, a law firm, said the Supreme Court case is “loaded with politics” and is a “test of strength of the UK government and the devolved governments in a post-Brexit world”.
“Politically, the dispute reflects the failure of the UK and Scottish and Welsh governments to reach agreement on which and how powers are repatriated to the devolved governments once the UK leaves the EU,” he said.
The government has until the report stage in the House of Lords to make amendments to the EU withdrawal bill to satisfy the Scottish and Welsh, Mr Mundy said, but he added that time is “short” and a constitutionally crucial case in the Supreme Court shows that the stakes are high.
Scottish and Welsh control over aspects of farming, fishing and environmental policy could make it more difficult for the UK government to seal new trade deals after Brexit. But the repatriation of the powers to Westminster would fuel criticism in Scotland and Wales that the UK government does not respect the 1999 devolution settlement.
“The Tories’ absolutely shambolic handling of the EU withdrawal bill is now heading to the courts, and unless the UK government fixes this mess, the UK is heading towards a constitutional crisis,” said Neil Findlay, Scottish Labour shadow Brexit secretary.
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