The Government’s Brexit White Paper published last week included a chapter on ‘Strengthening the Union’, highlighting the significant implications of leaving the EU for the UK’s current devolved system of government.
A Report published this week highlights how Brexit impacts not just on the UK’s current devolution arrangements but also has a potential impact on the UK’s external affairs.
The Report highlights challenges for the UK in delivering on the White Paper commitment ‘to deliver an outcome that works for the whole of the UK’ and secure the specific interests of Scotland, Wales and Northern Ireland.
The June 2016 referendum result in favour of ending the UK’s membership of the EU will have direct consequences for each of its four nations, which voted differently on whether to leave or remain. In particular, Brexit will challenge the existing arrangements for the devolution of political power to Scotland, Wales and Northern Ireland. The UK government faces a challenge of two unions. As it seeks to extricate itself from its union with 27 other European states, it also faces an inter-governmental challenge within the union of the constituent parts of the UK.
In the years since it joined the European Economic Community in 1973, the UK has embarked on a project to devolve political power to Scotland, Wales and Northern Ireland. This has reordered legislative and policy competences away from the UK’s parliament and government, and granted powers and responsibilities to the devolved governments and legislatures. In this process, many competences were devolved in part because they are predominantly legislated and enforced at the EU level. It is not clear what will happen when these competences are repatriated from the EU and to what extent they will be given directly to the devolved administrations.
In negotiating its departure from the EU, the UK will need to successfully develop joint positions between the devolved administrations and the UK government. This will be of critical importance for a successful Brexit settlement. The Report questions whether the current Joint Ministerial Committee (JMC) machinery in place to develop a collective UK position is an adequate basis to develop a shared joint position on leaving the EU. The JMC mechanism for inter-governmental decision-making should be revised for the challenge of negotiating Brexit as well as for representing UK-wide interests afterwards.
The Report also argues that alongside invoking Article 50, the UK government should undertake a review of which EU competences are to be returned to the devolved administrations under current constitutional arrangements. The UK’s current devolution settlement was reached after the UK joined the EU in 1973. One consequence of the repatriation of powers from the EU back to the UK is that this needs to be squared with the Devolution of powers and public policy making that now exist for Scotland, Wales and Northern Ireland.
After the UK leaves the EU some policies currently operated through Brussels are expected to return directly to the devolved administrations, which will then have more autonomy in these policy areas.
In the last few decades the division between domestic and foreign policy has become increasingly blurred. While foreign policy remains reserved for the UK government, some policy areas with external dimensions have been devolved to Scotland, Wales and Northern Ireland and these include agriculture, fisheries and the environment. These areas are of significance for the UK in developing a post-EU external trade and commercial policy.
Reconciling the process of Brexit with devolution therefore also create a spillover challenge for the UK’s external affairs. Prior to the referendum, the devolved administrations had already sought to establish, to differing degrees, their own profiles in external affairs. The outcome of the referendum has given these efforts renewed impetus. This could mean that the UK will show a more multi-faceted profile to the EU, its member states and third countries after Brexit.
The Report argues that it would be sensible for the devolved administrations to further develop their existing arrangements for representing their interests directly to the EU and member states after Brexit. Scotland is already well-advanced in this respect and has built on its pre-existing presence in Brussels and elsewhere to represent its interests and preferences to actors outside of the UK on matters such as the single market, free movement of people and fisheries. Wales currently has a less extensive set of arrangements in place and Northern Ireland’s system of government poses particular challenges to developing a coherent external relations.
Devolution ensures that the landscape of the UK’s external affairs looks set to be more variegated and complicated after it exits the EU.