The interplay between Brexit and devolution is a complex one and, as yet, says Michael Keating, there is little to suggest that the questions it raises have been answered.
One of the key issues in Brexit concerns the fate of those competences that are currently shared between the EU and the devolved governments and legislatures. In the absence of any specific action, these would revert to the devolved level. Brexit means that there would no longer be an EU framework governing them, but there would not be an overall UK framework either.
This could pose problems about policy coherence, the maintenance of the UK internal market and externalities. After some months, the UK, Scottish and Welsh Governments are now agreed that there will need to be some UK frameworks and have started talks on how this might be achieved.
Following the Joint Ministerial Committee (European Negotiations) of 16 October 2016, the UK Government has stated that: “A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.”
This does not tell us how these will be done. There are essentially two possibilities. The Withdrawal Bill proposes that all EU competences will be taken back to Westminster. Some of these may later be ‘released’ back to the devolved level. The Scottish and Welsh governments have opposed this and insisted that the division of competences within the devolution acts be respected.
Frameworks can then be negotiated across the various governments rather than imposed from above. Discussions are currently under way on what these might contain. Meanwhile, the Scottish and Welsh Governments support amendments to the Withdrawal Bill to remove the provision about taking powers back to Westminster.
The recent report from the Scottish Affairs Select Committee, agreed by all parties, is a contribution to this debate but does not resolve the issue. On the contrary, it seems to take both positions at the same time. It agrees on the need for frameworks and that these should not be imposed but agreed. Yet it also says that ‘Once agreement has been reached the UK Government should bring forward a plan to devolve all powers not covered by those frameworks to the Scottish Parliament.’
This suggests that powers that are covered by the frameworks will be reserved to Westminster. This would allow Westminster the final word on policy as it does on all reserved matters. Indeed, it would be constitutionally strange to stipulate that any reserved matter could not proceed without the agreement of devolved governments.
If the emphasis is on negotiated frameworks, on the other hand, the reservation provisions may be largely redundant. They could be replaced by general principles about the market and perhaps clearer provisions for enforcing international agreements.
The extent of the reservation thus implied would depend on how detailed the frameworks are but it is possible that devolved matters would be confined to implementation rather than policy making, consistent with the UK Government belief that currently the devolved governments only implement EU policy.
There are federal countries in which policy frameworks are agreed without the need to take back powers to the centre, for example Belgium and Canada. That provides an alternative route for the UK which does not involve Brexit rolling back the existing settlement.