Brexit, The Repatriation of Competences and the Future of the Union

Constitutional law in Scotland is dominated by uncertainty – uncertainty over the United Kingdom’s future relationship with the European Union, over Scotland’s future relationship with the European Union, and over Scotland’s future relationship with the United Kingdom. The immediate cause of that uncertainty is ‘Brexit’, which the UK Supreme Court said in its recent Miller judgment will effect no less fundamental a change in the UK’s constitutional arrangements than that which occurred when the UK joined the European Communities as the European Union then was in 1973. It will also necessitate amendments to the devolution settlement, which has only just been amended by the Scotland Act 2016; quite apart from which it may well prompt a second Scottish independence referendum, within a few short years of the first, which was supposed to have settled the question of Scotland’s constitutional future ‘for a generation’. A further but less immediate cause of constitutional uncertainty, which also has its origins in the UK’s or more accurately the Conservative Party’s troubled relationship with Europe, is the Conservative Government’s manifesto commitment to replace the Human Rights Act 1998 with a British Bill of Rights, which has been put on hold until the UK’s arrangements for leaving the European Union are known.