Issue 15


By Lynda Towers, Director of Public Law, Morton Fraser

The vote of 23 June 2016 will surely be seen by future modern political historians as a game changer for the United Kingdom, possibly also for Scotland and potentially for the direction of travel of the EU. We were told it was going to be easy. We would make other trade deals with a waiting world who would be desperate to trade with a newly rejuvenated UK. The EU would easily give us a deal which would mean we would keep all the good trading bits but would rid ourselves of the Court of Justice of the EU, migration of EU nationals and paying large sums into the EU coffers. We would have our Parliamentary and national sovereignty back.

Around 6 weeks away from Brexit Day on the 29 March 2019, those heady June aspirations and beliefs seem to some observers as naïve at best and misleading at worst from whichever side of this particular political debate you look. While what form Brexit will take is still far from clear, even at this stage there are changes which have taken place and new questions have arisen. How are our elected representatives supposed to represent us? How can we influence them since this issue has such crucial implications for years to come in the way an ordinary general election does not? What is ‘democracy’ and why can ‘democracy’ only speak once with no Second Referendum being on the cards? Do we ever want to have another referendum ever again? The country has become so divided, as have the major political parties, with only the SNP, the DUP and the Liberal Democrats displaying notable internal consistency.

Westminster politics and processes have changed in a way few might have predicted. The impact of the Fixed-term Parliament Act 2011 has in many ways strengthened the current position of the PM. Her own party managed to come together to defeat the vote of no confidence in the government and her own party voted not to replace her as leader making her position unchallengeable for another year from the vote. Whether her undertaking to step down at some later date can be enforced remains to be seen. However this leaves Westminster with the PM losing a vote on the Withdrawal Agreement, her major policy initiative in this Parliament, by around 230 votes, a scale not seen in modern Parliamentary history and yet she remains PM and shows no sign of stepping down or changing her defeated position. This was the much discussed ‘meaningful vote’ which will be happening at least once more before the end of February, probably.

There have also been rumblings in Westminster corridors around backbenchers and committee chairs, rather than the Government as the Executive, running business in Westminster and deciding what should or could be debated and decided. Should Parliamentarians take more control over the process? Added to this, the Speaker himself is seen by some members to be flexing his muscles in how the Rules of the House are applied, and in their view to the detriment of the Government.

There are a lot of genies being let out of bottles in Westminster at present and it remains to be seen whether they can be persuaded to return in peace to their previous containment. It is also dangerous for any government or opposition when backbenchers get used to defying the whip. It ceases to be seen as exceptional and having tasted defiance they may not be prepared to be quite as quiescent in the future.

It still seems difficult to comprehend that 6 weeks away from Brexit it is not clear whether we will leave the EU on 29 March despite what the PM states, whether there will be an agreement in place or not and how the UK will trade with the EU27 or the rest of the world. Big business may be able to cope and will have prepared for this uncertainty but the small manufacturer of goods may not be so prepared. Producers making a product with Geographical Indicator status have just been told by DEFRA that if there is no deal then they must use a UK not an EU logo on the label for their goods. However the same guidance note also tells them the UK logo has not yet been issued nor when it will be issued. There may be a transitional period to 2022 but it is not clear how that will work in practice.

There are also suggestions that the necessary legislation to support Brexit may not be fully in place by Brexit Day. A number of Bills that are crucial to making Brexit work remain in the Westminster system. The underlying secondary legislation to make them work cannot be introduced until the Bills themselves become Acts. There are almost bound to be some legal lacunas waiting to be uncovered. The main legal frameworks may be in place and many complex statutory Instruments are just awaiting commencement, but there remains potential for considerable short term legislative uncertainty.

Robert Burns can be relied upon to provide a suitable pithy quote for any situation. If you are of the Brexit persuasion then what better than "Now's the day and now's the hour….". If you are confused by where Brexit negotiations have or have not led us to then perhaps the most appropriate quote is "The best laid schemes o' mice and men gang aft agley….". However for the future modern political historians interpreting what has happened in recent times we could leave them with -

"O, wad some Power the giftie gie us
To see oursels as others see us!
It wad frae monie a blunder free us,
An' foolish notion."

Please note: this article was correct as of 12/02/2019.

By Lynda Towers, Director of Public Law, Morton Fraser

Issue 15

Issue 15


A Perspective on the Planning (Scotland) Bill - Delivery and outcome focussed?

There is a continuing and urgent housing crisis in the UK – something we only need eyes to know with so many homeless people on the streets and with so many young people struggling to access housing beyond the parental home. This is not a new problem. The cumulative shortfall in new home building, particularly in the affordable sector, has been the case for many years. Indeed if you look at housing delivery over the last forty years you will see a clear, downward trend, spanning the inevitable cycle of boom and bust.


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