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Given this is now hurtling toward us like a freight train and we have one for the Catalan Crisis, I thought it time for a UK Democratic & Constitutional crisis thread.

Ahead of brexit, constituional experts warned that the UK leaving the EU would provoke a constitutional crisis over both the peace process in N. Ireland, and with devolution.

Here's an example of that warning:

Quote

https://www.centreonconstitutionalchange.ac.uk/blog/british-withdrawal-eu-existential-threat-united-kingdom

British withdrawal from the EU: an existential threat to the United Kingdom?

...It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Well now that crisis is unfolding.

Round one saw the Irish republic threaten to veto any post-brexit UK trade deal unless the peace process in N. Ireland is respected, including free movement across the border. This issue is not anywhere near solved, just kicked into the long grass, and will appear again soon enough. Brexit and the peace process are incompatible; not unless the UK stays in the single market. Given the threat brexit poses to stability in N. Ireland, unsurprisingly our first poll on the matter shows the N. Irish people narrow support reunification with Ireland in the EU over staying with a brexited UK. When we consider that unionists parties no longer hold a majority in Stormont for the first time in history, the prospect of N. Ireland rejoining the republic has never been closer.

Then we have devolution in Wales / Scotland / N. Ireland

The principle of devolution (certainly in Scotland) is that what is not specifically reserved to the UK parliament is devolved. On exiting the EU, all devolved area powers controlled by Brussels (e.g. farming, fisheries, environment) should automatically return to the devolved parliaments.

However, the UK government is current attempting a power grab, trying to take control of a wide range of powers currently devolved, including those coming back from Brussels. It is attempting to do this via the brexit great repeal bill.

The reason it is doing so is that the UK cannot make new trade deals (including with the EU) if it is not in full control of much of the legislation devolved to Wales, Scotland and N. Ireland. Take fisheries for example; as it stands, upon Brexit, Edinburgh takes complete control of Scotland's fisheries, and legally so. That would mean the UK negotiating team could not use Scotland's fisheries in negotiations; not without Scotland's consent. Hence the Westminster power grab underway.

Westminster is currently saying this power grab is temporary. However, this cannot be, as the same problem will apply for any trade deal going forward. If it touches on devolved areas, then Wales / Scotland / N. Ireland could pass legisaltion in breach of the deal, so scuppering it.

As a result, brexit is incompatible with devolution.

Only two options seem reasilistic going forward:

1. The UK returns to a single, unitary state, with devolution ended; something which is never going to be acceptable to devolved nation populations (only 10% support this in Scotland for example, with 75% for devo max).

2. All devolved parliaments have a full veto on trade deals, just as national parliaments do in the EU Union; that means the English brexiters have taken control, only to give it to the jocks, Sinn Fein etc.

Therefore, it seems unlikely that either of these options will be satisfactory to all parties. As a result, Westminster is attempting a power grab to try and pursue brexit regardless, and now we have a constitutional crisis.

Both Scotland and Wales are stating they will withhold legislative consent for the brexit bill unless 1997 devolution referendums and associated acts are fully respected. Both are now planning to pass their own brexit bills protecting all devolved areas post brexit. This is something they can legally do as it is within their legislative competences.

The UK parliament will have to bring them to the table, or attempt to essentially close down the devolved assemblies by directly overruling them as Spain is attempting in Catalonia.

This would provoke a massive crisis and one which may yet bring a quick end to the UK, particularly as the Tories/DUP have no mandate for the move at all, having lost heavily in all recent elections in all the devolved nations, and the EU referendum in N. Ireland and Scotland. This lack of mandate means the current power grab attempt is a direct attack on democracy; it overrules 1997 referendum results and 20 years of devolution with no mandate whatsoever. 

The situation is particularly acute in Scotland where UK parliamentary sovereignty does not apply and Scots law does; we can expect legally challenges in the Court of Session, Scotland's highest court. This would in effect be the UK Tories trying to shut down Holyrood and enforce direct rule live on Scots TV. Truly Christmas come early for the Scottish nationalists, particularly as the fight would not even be about independence, yet it would most likely hand that to them (polls have a narrow majority of Scots now backing independence, albeit it they wish to wait at least until brexit is sorted out).

http://www.whatscotlandthinks.org/questions/given-that-the-uk-has-voted-to-leave-which-is-your-preference-regarding-scotlan#table

And of course in N. Ireland, where the EU is on the side of Ireland.

Latest from Wales:

Quote

http://www.bbc.co.uk/news/uk-wales-politics-42747242

Brexit: 'Irresponsible' to threaten Welsh refusal of consent to EU bill

Image captionCarwyn Jones has claimed the terms of Brexit could result in Wales losing power to Westminster

Carwyn Jones is "irresponsible" to suggest the Welsh Assembly could refuse to back the EU Withdrawal Bill, a former Brexit minister has said.

The first minister called the bill "a fundamental assault on devolution" because powers would initially return to Westminster from Brussels.

UK ministers insist powers on devolved matters will be passed on eventually.

Clwyd West MP David Jones said the first minister should work with the UK government in "a positive manner".

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-42719324

SNP slams Scots Tories over Brexit bill

The SNP has accused Scottish Conservative MPs of acting as "lobby fodder" for the UK government over its Brexit bill.

The Scottish Tories have been highly critical of delays to the UK government's timetable for amending the bill to take account of devolution.

But all 13 Scottish Conservative MPs opposed amendments put forward by Labour in the Commons on Tuesday.

The bill will leave the Commons later on Wednesday and go to the Lords.

The Scottish and Welsh Governments have said they cannot recommend the bill is granted consent in its current form, as it would see EU responsibilities in devolved areas initially transferred to Westminster.

The same thing will happen if Stormot sits again, with Sinn Fein, the SDLP and neutral parties able to command a pro-EU majority for such a bill, backed by the Irish and EU. 

Both parliaments plan their own brexit bills within a month or so. These would be for preserving democracy and ensuring all devolved area powers are retained post brexit, including those coming back from Brussels.

These bills could bring brexit negotiations to a halt (as the UK government would not legally be in control of legislation covering many areas of trade) unless the UK government tries to shut down (in effect) the devolved parliaments as noted.

Edited by scottish skier
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This is best discussed in the UK politics thread. We don't need several threads all with the same people discussing the same things.

Closing this.

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