Scotland's place in Europe: our way forward

The Effect of Brexit on the UK Constitution and Devolution

80. The process of Brexit has demonstrated weaknesses in the UK's constitutional arrangements, and the threats to the position of the devolved administrations and legislatures. Over the last two years there have been moves to centralise power in Whitehall and Westminster; long standing protections of devolved powers have been ignored and removed; and decisions that affect the people of Scotland have been taken without proper democratic accountability through the Scottish Parliament. During the passage of the European Union (Withdrawal) Act 2018 there were sustained efforts by the UK Government to introduce wide ranging restrictions on currently devolved powers. Eventually the UK Government took the unprecedented decision to legislate in devolved areas after the Scottish Parliament explicitly refused to give its consent, breaching the Sewel Convention. The Withdrawal Act also allows UK Government Ministers to change the competence of the Scottish Parliament without its consent, breaching a fundamental principle of the devolution settlement put in place in 1998.

81. It is clear current constitutional arrangements cannot bear the weight of Brexit, neither to negotiate the UK's withdrawal from the EU nor in the longer term. Long standing weaknesses in our arrangements - lack of robust legal protections of devolved powers, lack of effective mechanisms for inter-governmental working, and cultural attitudes within Whitehall and Westminster - have been illustrated starkly through the Brexit processes^[54].

82. There is now a need for a widespread debate about the implications of Brexit for the UK's constitutional arrangements. The Scottish Government has already set out proposals to ensure that the Scottish Government and Scottish Parliament are able to protect Scotland's interests, including devolution of further responsibilities for key rights currently guaranteed by EU membership^[55]. There is also an immediate need to strengthen the Sewel Convention and protect current devolved responsibilities, and to improve arrangements for the conduct of intergovernmental relations across the UK. The Scottish Government will continue to develop further proposals to secure Scottish interests following withdrawal and enhance the powers of the Scottish Parliament, including the potential for an international legal identity for Scotland. We will also contribute to a wider debate on the nature of the future governance of these islands.

83. And as the Scottish Government has said, we will also set out our view on another Independence Referendum at the end of this phase of negotiation. Our proposal on European Single Market/Customs Union membership offers the strongest foundation - short of continued EU membership - should, in future Scotland choose to be independent and seek to rejoin the EU.