1st March 2018
David Johnstone, an Account Executive in our Scotland offices, looks at the current devolution settlement and the potential changes post-Brexit.
Negotiations over the post-Brexit devolution settlement have intensified this week. The sudden urgency from the UK Government to move towards a deal come after the latest round of Brexit talks with the Scottish Government once more ended in no agreement. The negotiations always had the potential to boil over, but until recently it appeared that both sides were steadily moving together and that a deal could be reached. Hopes for this have been dashed in recent days, as both sides have taken to briefing the media.
On Monday, David Lidington – leading the negotiations for the UK Government – used a speech in Wales to promise changes to the Brexit bill so that the “vast majority” of powers from Brussels will start off in the devolved nations. The UK government are opposed to immediately devolving these powers as they are concerned it could lead to a fractured UK market, with different standards, regulations and procedures within the UK. Consequently, they are reluctant to grant powers over standards, such as food labelling and hygiene rules.
The First Minister, Nicola Sturgeon, quickly rejected the UK Government’s proposal, arguing that it undermines the principles of devolution. While this could be seen as posturing from Sturgeon, there are some legitimate concerns that remained unsettled. The Scottish Government will no doubt privately acknowledge that different standards amongst UK nations would create unnecessary trading frictions, instead their grievance lies with who will get to set these standards. If these powers sit with Westminster alone, then the Scottish Government fears they will have no power to prevent a race to the bottom in standards – a concern that has been exacerbated by those advocating for a raft of post-Brexit de-regulation to make the UK more competitive.
While most of this week’s commentary has focused on Corbyn’s positioning on Brexit, the issue with the devolved nations will need to be resolved soon. While the Scottish Government has been the most vocal on the issue, the Welsh Government is united in opposing the current offer. A scenario where no agreement is reached with the devolved nations will put May in a difficult position politically, where the devolved parliaments would be unlikely to give legislative consent to the EU withdrawal Bill. Failure to get consent from the devolved nations would not bind May legally, but would mean having to push the Bill through against the will of the devolved nations – almost certain to cause discontent.
In order to break the impasse, direct talks between May and Sturgeon seem increasingly likely. However, Sturgeon has been critical of previous meetings between the two leaders, criticising May for sticking to scripts and not willing to discuss matters in any depth. As long as the Scottish Government can articulate to the Scottish public their reasons for not agreeing to a deal, it appears they will come out on top under either scenario. May might well concede to a joint decision-making mechanism over agreeing UK standards, but a no deal scenario would also suit Sturgeon.
It has been expected for some time that the SNP are on the brink of renewing their push for independence, after their initial attempt to renew the campaign backfired at the General Election. If May were to push on with the Brexit Bill against the will of the Scottish Parliament this would feed perfectly into the nationalist narrative that Scotland’s voice is seldom heard or respected – potentially driving the 62% of Scots who voted remain one step closer to the independence camp.
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