Monday, 13 November 2017

All Change

Brexiters often say that leaving the EU gives the UK an opportunity to make fundamental changes to almost every facet of British life. They're roughly correct, except for the simple fact that change will be a necessity rather than an opportunity. The UK will have to start doing things entirely on its own; it will have to do things that it has never, ever done for itself; it will be forced along policy directions by reduced circumstance rather than by choice or by design. Brexit will force changes to the political system, it will affect the economy, it will profoundly affect the national culture.

One of the reasons that Brexit maintains the support it does is that the changes it will trigger are hard to visualise because our everyday lives are distant from the functions of high government. It might be of more value, therefore, to focus on the way that the coming changes will affect our very real lives. What can we say about that? Well, we can say with some certainty that Brexit will change the fundamental conditions that lead to business success and failure; it will alter the decisions that people make about their education and career and future; it will change the value that society places on job skills and experience; it will change the way that people think about the rest of the world and about their own country and neighbourhoods; it will change our relationship with all levels of government. The problem remains that it is difficult to be specific about any of this because each change affects every other change and every other change influences every other. We have no idea where this experiment will end up. Can we be more specific about anything at all? Yes, we can. The UK will need to change consitutionally in very specific ways that will undermine the Scottish devolution settlement.

I would argue that EU membership creates the very conditions that made the Scottish devolution settlement possible. It does this in two very distinct ways:
  • it forces legislative similarity across the UK for Holyrood competences devolved to Brussels.
  • it allows legislative difference to prosper for Westminster competences devolved to Brussels.
To be perfectly honest, the "summary" above is a bit of a mouthful. It took me an age to distill it down into two simple sentences but I'm not all sure it was worth the effort.  In actual fact, I barely understand what I just wrote so, if only for my own benefit, we need some examples. Agriculture is a good place to start.  It turns out that agriculture is a power devolved to the Scottish government but one that has been largely devolved one more time to a shadowy cabal of unelected Stalinists in Brussels. As a consequence, farmers in Scotland and England and Wales and Northern Ireland are all bound by the same legislation on the treatment of waste water, they receive subsidies based on the same formulae, they must abide by the same list of banned and permitted pesticides. Farms across the UK are all controlled by exactly the same EU law and the same penalties for breaking EU law. That will all end when the UK exits the EU. Immediately after the UK has "taken back control", Holyrood will once more be the highest arbiter of legislation governing the operation of Scottish farms. Holyrood will be free to implement its own legislation on the treatment of waste water, on farm subsidies, and on the list of banned pesticides. All sorts of decisions governing agriculture will be taken by elected representatives in Holyrood. We will likely see Scotland and rUK diverge in all sorts of ways.  This becomes a problem if Liam Fox tries to hammer out a trade deal with the US that includes agriculture. The US is going to see a complex patchwork of legislation and subsidy and banned pesticides, while Liam Fox will have no control over his own negotiation because he will be trying to trade on political powers that he clearly doesn't have.  This will be the foundation of constitutional conflict.

What about those legislative differences that EU membership makes possible? Let's start our journey to the answer with yet another question: why has the EU never signed a trade deal that includes access to health markets for 3rd nations? The short answer is that the EU could never attempt that because health is not an EU competence. If the EU attempted to trade health provision with a 3rd country it would quickly find itself in hot water because it would be trading powers it doesn't have. In difference to Liam Fox, the EU understand the limits and consequences of its own powers. If health is a power retained by national governments and everyone agrees on that then there is no potential for conflict if health provision diverges across the EU. We know that health provision is divergent across the EU: the UK has its own model funded by taxation, while Germany has an insurance system. Moreover, the available treatments and the way they are funded differs from country to country. If that difference can exist across the EU without conflict then it can also exist across the UK.  That will all change when the UK exits the EU and the power to sign its own trade deals will be returned to Westminster. It is unthinkable that the UK would not attempt to use access to the NHS internal market as a bargaining chip. It won't be able to do that if NHS Scotland remains devolved to Holyrood. Poor old Liam Fox will be attempting to trade powers he won't have.

The UK will need to start behaving as a single, unified nation. It will have to start doing things for itself, on its own. It's obvious that divergence across the UK will hinder that project. The devolved settlement, which enables the Scottish government to make divergent decisions, will need to be amended, diminished, curtailed.  It just isn't possible to negotiate FTAs with 2 separate parliaments and 2 assemblies.

Taking back control doesn't just mean taking it back from the EU.  Taking back control actually means ceding control to an all-powerful executive in Westminster. There is no other way that Brexit could ever hope to work.  There is only one way to avoid this now.

Over and out,


PS Readers of this blog know much more about Scottish devolution than I do. I'd be grateful if anyone could leave some examples of conflict in the comments.


  1. Tris Price Williams13 November 2017 at 23:53

    This is an important subject that so far seems to have been given very little in the way of publicity.

    We would have to look at all the devolved departments to see where the uk would be able to take back powers from Scotland (and the two assemblies) and give them to the likes of Liam Fox.

    I suppose it would be only issues where the UK would want to give away control to the USA (having just got it back from Brussels.) That is to say those areas that could be traded.

    So, the Scottish parliament's ban on fracking, could be overturned by Westminster legislation that would enable Fox to sell American firms the right to frack the shit out of the UK.

    Scotland would have to fall in line with English NHS.

    Even education might be something the Americans would want to get their hands on... England seems to have a lot of "independent" schools. I'm not sure how they operate. Maybe there is money to be made. Certainly would be in universities. And universities will be desperate after Brexit.

    Standards in most cases are lower in England and much much more is privatised.

    It depends on how much the Americans demand in return for trading with us. Fox will be a pushover. So anything and everything is at risk.

    I wonder if some if the European countries would take pity on Scots being forced into this against their will and offer some sort of asylum.

    It really is getting scary now.

    1. The UK government could certainly try to trade fracking rights. They could let foreign companies bid to run schools, bus services, school meals, educational material. They could trade access to government procurement for schools, hospitals, social care. Almost every area of devolved government is potentially up for grabs. Anything that involves expenditure is attractive to a foreign investor currently locked out of the system. They're locked out of the system at the moment because EU membership limits the scope of FTAs. Devolved government is a thorn in Liam Fox's side.

      The US are duty bound to attempt to include agriculture in any FTA. That condition is laid out in the current Trade Promotion Authority - it is a condition demanded down by Congress. The only way to stop it being bundled in is scientific evidence that, say, chemically washed chicken or hormone-stuffed beef has significant health risks. The EU has already lost cases like this at the WTO but made a deal with the US on quotas to uphold its own ban. The UK has far less to trade, and Liam Fox doesn't see it as any kind of problem.

      It really is getting scary now. The recent court case at the Supreme Court revealed that devolution is a "self-denying ordinance" that can be overruled. It's legally true that power devolved is power retained but in practice this hasn't been a practical concern. Until now.

  2. A list is available here:

    I wouldn't call it 111 powers - clearly 1-5, 18-23, 32-45, 70-74, 81-91 and a few others look like complex single issues split up into subcategories. That still leaves well over 50 areas by my reckoning.

    One conflict I can see is number 78. Onshore hydrocarbons licensing. Basically, fracking - this was banned by Holyrood. If Westminster reclaims that power, then the fracking ban could be rendered null and void.

    For a bit of fun - putting a range of 1-111 into a random number generator. Got 105 - State Aid. That seems like a potentially significant area too, given what's happening to Bombardier.

    1. Thanks for the link.

      Fracking sounds spot on. The UK government could try to bundle fracking rights into a FTA. US fracking companies would surely lobby for that.

      State aid is particularly interesting. We could see Calmac being put out to tender under very different circumstances than last time. The Bombardier case makes it clear this is a disaster waiting to happen.

      Even something like 8. Aviation Noise Management at Airports or 61. Hazardous Substances Planning could impact on the ability of a company to make a profit North or South of the border. It's hard to negotiate access to only part of the territory. That's why the EU needed regulatory harmonisation for it to function. The UK will surely need it too. It's hard to see this ending well.

    2. And 95. Public sector procurement. That is just huge. That would account for the lion's share of the Scottish government's budget.

  3. As Tris says, "This is an important subject that so far seems to have been given very little in the way of publicity."

    Scotland has one chance to get out of this mess and I am terribly frightened that too many f'ing idiot Scots won't see it and won't vote accordingly.

    Thank goodness for my NZ passport is all I can say...

    1. I also have the impression that nobody sees what is coming. Maybe we shouldn't be too surprised. Elected MPs don't even understand the basic process of A50 and they have research staff and party briefing papers at their disposal. It is also their full-time job. Moreover, it seems that very few MPs actually understand what it really means to leave the EU. Where would anyone outside the world of politics find out any of this?

      An NZ passport sounds like a good thing to have.

    2. Tris Price Williams14 November 2017 at 23:38

      I've a lot of friends who have remembered that they have a right to dual nationality. Some Irish, some Polish, some French.

      Regrettably, I don't.

      In other news, I hear that Ken Clarke gave a tour de force speech this afternoon in London.

    3. I curse my ancestors every day!

    4. I should also thank my partner's mother for being Irish too. Sorry if that sounds like I am gloating but it really isn't. I don't wish to leave Scotland at all at all. I know this having spent some of my childhood living elsewhere and I know just how much living in Scotland means to me. But being the son of a double emigrant (my mother is NZ born of Scottish descent but emigrated here in the 1970s and then again in 1990) the idea of upping sticks is not as alien to me as it might be for many born and bred Scots. Those without the right sort of ancestors should consider Canada as a future home if Scotland stays bound the Brexit Britain for the foreseeable future. The Canadians are pretty welcoming of immigrants.

    5. I have relatives in Canada, like almost everyone in Scotland. Canada is a great place. Never been to New Zealand, though. Scotland is a great place as well. We mustn't forget that, despite Brexit and the general doom and gloom that I unleash on this blog.

    6. Scotland is a brilliant place & a timely reminder can be had by making a daily visit to Prof John Robertson's page I am continually amazed at how well our wee country is doing because it never makes it into the media. A very, very much needed dose of positivism. (My only worry about that site being that Scots might think we don't need Indy when we are already doing so well!)

  4. It has always been the plan of the disaster capitalists, who are using the bunch of clowns currently known as the uk government, to get rid of the devolved administrations, particularly the Scottish Parliament.

    In this, I fear they are going to succeed.

    Their are rich pickings to be had for the few, the super rich, from the consequences this will bring, some of which you mention above. Some of us will suffer greatly. Many complacent unionists in Scotland refuse to countenance that this is so, and some would even rejoice in the death of Holyrood.

    I wish I could be more optimistic, but my licensed premises based research gets more gloomy by the week.

    I wish I had the right to another passport. Like Tris, I don't.

    1. I'd never hear the term disaster capitalism until just a few weeks ago. When I look at the people really agitating for Brexit many of them really do talk up disaster capitalism as a good thing. Good for them, I guess. It won't be good for me or anyone I know.

      It's bizarre that Brexit hasn't moved on since June 23, 2016. Almost nothing has happened. The Brexiters are still just about able to talk about unicorns and sunny uplands. No substantive decision has been taken that will have real, measurable consequences. We can't hope for opinion to change until that happens. It is truly amazing to find us here in this situation after almost 18 months.

    2. EN, you need to find a better pub, mate! Your local sounds like it is having the same effect on you as watching/listening to the BBC or reading the newspapers has on me (things I no longer do). I am fortunate that my local is not like yours. I don't think I've ever heard politics discussed in the bar but the pub flies a saltire or a Celtic Nations flag over the front door and I can't recall seeing a Union flag in the place. (No football either so no sectarian nonsense either - there is another pub around the corner for that). Nice.

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