Tomos Evans is a postgraduate research student in the University of Bath's Department for Politics, Languages and International Studies. His research concerns defence as a devolved policy concern in the United Kingdom.
The United Kingdom’s constitution has changed dramatically since it entered what was then the European Community in 1973 – and a big part of this change has been due to devolution and the creation of legislatures in Scotland, Wales, and Northern Ireland. Given that the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales were all established within the last 20 years (and therefore also within the framework of EU law), it is not surprising that Brexit presents numerous challenges to the functioning of devolution within the UK.
Discussion of the impact a ‘leave’ vote would have on devolution was almost non-existent in the debate over EU membership. It is incorrect to assume that powers currently held in Brussels will revert to Westminster; the picture is more complex than that. Akin to the soundbite ‘Brexit means Brexit’, when it comes to Brexit and devolution, the debate has not progressed much further than ‘Brexit means more powers for the Scottish Parliament/National Assembly for Wales/Northern Ireland Assembly’ (delete as appropriate).
A silent guarantor
Since the referendum, political issues – Scottish independence and the nature of the Republic of Ireland-Northern Ireland border – have been high on the agenda and up for discussion. What has been lacking, however, is a comprehensive look at the legal and constitutional implications of Brexit for the devolved nations; indeed, issues around powers returning to the UK from Brussels and the impact of EU law falling away on the devolution settlements have still not been evaluated at length.
On the face of it, extracting the UK from the EU would not impact greatly on devolution because the EU in itself is not a devolved issue. The problem here, however, is that the devolution settlements are all premised on the idea of EU membership; the devolved legislatures are legally barred from passing any legislation which contravenes EU law. EU membership therefore provided for a general restriction on the powers of the devolved administration and legislatures, and leaving the EU will not only leave a gap in the UK’s statute book but also the constitutions of Scotland, Wales, and Northern Ireland. By virtue of the UK's membership, the EU has acted as a silent guarantor to the devolution settlements by either enabling or restricting the devolved administrations.
Alongside the idea of the EU acting as a silent guarantor, the devolved administrations are responsible for a range of policy areas – agriculture, fisheries, environment, and transport to name a few – which fall within overarching EU policy areas. When the UK leaves the EU, responsibility for these areas should logically transfer to Holyrood, Cardiff Bay, and Stormont, not Westminster – but this isn’t necessarily what the UK Government has in mind. In fact, current proposals for managing these constitutional challenges risk riding roughshod over established conventions and principles when the EU ceases to be a silent guarantor to the devolution settlements.
The Great Repeal Bill White Paper
It is within this context that, on 30 March, the government set out its strategy to ‘ensure a functioning statute book’ following the UK’s departure from the EU. The Great Repeal Bill White Paper plots out the government’s plan to repeal the European Communities Act 1972, transposing existing EU law into domestic UK law and granting ministers the power to amend legislation to remove references to EU law. The White Paper is not overly complex for such a mammoth task, but it does provide a useful insight into the government’s thinking, fleshing out the policy for managing the challenges and changes previously mentioned. Chapter four deals exclusively with devolution issues.
Chapter four of the White Paper, consisting of six paragraphs, is not particularly comprehensive considering that it deals with issues fundamental to the UK constitution. Although it makes important and legitimate points around maintaining the integrity of the UK’s single market, the proposals raise more questions than they answer and should be of concern to devolutionists. There are four key issues that present major questions for the future of the devolved powers.
First, the repeated use of the term ‘common frameworks’ implies that the UK Government currently sees the devolved administrations as mere implementers of EU policy. This is the opposite of what the devolved administrations believe: that the powers are theirs, and thus the UK Government has no right to unilaterally remove them. Casting the devolved administrations as implementers of a broader policy regime is a way of undermining the position that the powers are theirs but operationalised on an EU-wide level.
Second, the paper includes a proposal to replicate EU ‘frameworks’ in UK law, which risks undermining devolution and raises more questions than it answers. Will the new UK frameworks simply replicate the current EU ones and enable the devolved administration to maintain the current flexibility they have, or will they be more restrictive? Will they provide for a sweeping restriction on the devolution settlements? This is a matter for another more comprehensive piece of legislation, but clarity is needed from the outset. The discussion of common frameworks – although they will be needed – seems to be taking place in the shadow of the Supreme Court's Article 50 ‘Parliament is Sovereign’ judgement.
Third, the White Paper claims that the Brexit process presents an ‘opportunity to determine the level best placed to take decisions on these issues’, which can be read in two ways. Not only could it mean additional powers being devolved, but it also opens the door to powers being removed from the devolved administrations. Are the UK Government gearing up to ‘tidy’ some of the statutes and remove powers in other areas? For the sake of the integrity of the UK’s internal market, new restrictions will be required, but consent must be sought to comply with established conventions.
Finally, there is no discussion around legislative consent motions in this paper. By convention, the UK Parliament does not legislate on devolved matters without the agreement of the devolved legislature. That principle also applies to amending the powers of the devolved institution. Admittedly, Parliament is sovereign and retains the right to legislate on anything, but unilaterally amending the devolution statutes would be damaging for political reasons. Such amendments have occurred in the past – in Wales an exception to the Assembly’s powers was broadened without the consent of the Assembly in 2014 – but unilaterally adding broad blanket reservations to the devolution statutes without consent due to Brexit could damage relations between the governments of the UK. It might also be a boon for nationalists and further imperil the union.
Legislate now, discuss later
The UK Government’s approach to Brexit and devolution as presented in the White Paper seems heavy handed. This is not to say that powers that revert to Edinburgh, Cardiff, and Belfast should be used to undermine the UK’s single market – it is vital that common UK frameworks are developed. Nevertheless, the government’s proposals are not consistent with equality and partnership; current proposals suggest a ‘legislate now, discuss later’ approach. Unilaterally removing powers from the devolved administrations for the sake of UK-wide frameworks is not a sensible or sustainable way of managing the Brexit process.
Discussions over common frameworks may be happening now behind the scenes, but the tone of the White Paper implies otherwise. The current proposals, with their emphasis on hastily establishing temporary legislation that can be revised later, will make it difficult for the devolved administrations to make their voices heard. The Joint Ministerial Council (JMC), which functions as a forum to manage relations and disputes between the devolved administrations and UK Government, has already been criticised over its usefulness in the Brexit process so far – Welsh Government Cabinet Secretary for Finance and Local Government Mark Drakeford claimed that “St Fagans Community Council… would be better organised than most JMC meetings have been” – but it is the only existing intra-UK vehicle which could facilitate talks over common frameworks. It is somewhat ironic that the JMC will likely have to end up mimicking the EU’s Council of Ministers to manage relations and some cross-UK policies.
The White Paper risks being the thin end of the wedge. The paper does not take any account of established convention and practice. It is extremely light on the detail when it comes to devolution, which may be one of the more complex issues to deal with as part of the Brexit process. It is important to remember that devolution is the settled will of the people of Scotland, Wales, and Northern Ireland; unilaterally overhauling the devolution settlements and riding roughshod over established conventions is not the meaning of ‘taking back control’.