Emma Megaughin, who leads our Scotland office, looks at the dispute between Holyrood and Westminster over post-Brexit powers.

Holyrood and Westminster remain at loggerheads over post-Brexit powers. With the Welsh Government striking a deal earlier this week, and Scottish Labour and Lib Dems now backing the Scottish Government’s position, where does this leave Holyrood – and what is the dispute actually about?

There are more than 100 devolved powers set to transfer from Brussels to Westminster after Brexit. The fate of these powers, which include areas such as fishing and farming, has been the subject of fierce debate.

The powers are technically devolved to the Scottish Parliament, but are currently exercised from Brussels to ensure the consistency of rules and regulations across the EU. UK ministers, however, say that Westminster needs control over some crucial matters to protect the UK internal market during the immediate post-Brexit years.

Ultimately, the UK Government feels that it cannot risk any delays or compromises when it comes to the trade deals it wants to pursue post-Brexit, so the last thing it wants to risk is a stubborn Scottish Government refusing to play ball.

Both sides agree that some powers should be built into UK-wide frameworks, so that the same rules and regulations in areas such as food labelling are used across the country. But there has been disagreement over whether the devolved administrations should only be consulted about any changes, or whether they need to formally give their consent.

UK ministers say the "consent" route would effectively give ministers in Edinburgh a veto over policy relevant only to other parts of the UK, whilst Scottish ministers contend that the "consult" route would let Westminster overrule them on important devolved issues. Both sides have dug in around their positions, and each claim the other side's preference would represent a significant change to the existing devolution settlement – hence the sticking point.

So, what happens if an agreement can’t be reached? If no deal can be struck over how some powers returning from Brussels are distributed into UK-wide frameworks, the Scottish Government has said it will not put forward Westminster's EU Withdrawal Bill for essential devolved consent votes. David Lidington – the UK Minister for the Cabinet Office and de facto Deputy Prime Minister – chaired a meeting of the joint ministerial council yesterday (2 May), hoping to resolve the issue. At the time of writing, however, the impasse remained.

The Scottish Parliament passed legislation last month – in the shape of the Continuity Bill – that is intended to act as an alternative to Westminster's EU Withdrawal Bill. The UK Government subsequently asked the Supreme Court to rule whether the legislation is constitutional and within Scotland’s devolved powers. The legality of the Continuity Bill is already contested by the Presiding Officer of the Scottish Parliament, but defended by the Lord Advocate in Scotland.

If there is no deal, the Continuity Bill will come into sharper focus – and into the Supreme Court. Should the Justices allow the legislation to proceed, it will receive Royal Assent and give Scottish ministers extra room to go their own way. But if the Justices strike the Holyrood Bill down, Westminster could step in and legislate for Scotland without devolved consent. This would likely result in UK-wide frameworks again – as well as an almighty political row.

Nicola Sturgeon, the First Minister of Scotland, believes this issue is a matter of principle, and is not willing to compromise. She is appealing to her hardcore support, driven by her desire to use Brexit to trigger another Scottish independence referendum. This approach risks alienating those who would rather Scotland tries to make the best of Brexit, leaving Sturgeon in an isolated position, but she is not known to be one for backing down. 

In reality, the UK Government does not necessarily need to reach a deal with Holyrood. The failure to do so, however, could pave the way for “Indyref2” – something the Prime Minister will want to avoid at all costs.