Brexit - The devolution question

Publication | April 2018

Where existing EU regulation covers areas of devolved powers, what will the impact of Brexit be?
Following Brexit, will the UK Government be able to pass Brexit-related legislation modifying devolved powers unilaterally?
Could Brexit lead to another referendum on Scottish independence?
What impact would loss of EU funding have on Scotland, Wales and Northern Ireland?
How will Brexit affect Northern Ireland’s relationship with Republic of Ireland?

For up to date information, please visit our blog at https://www.insidebrexitlaw.com/blog/devolution

Where existing EU regulation covers areas of devolved powers, what will the impact of Brexit be?

UK Devolution has resulted in various powers being transferred to Scotland, Wales and Northern Ireland.

Many areas within the competence of the devolved nations’ parliaments/assemblies are currently covered by EU law: for example: agriculture, animal welfare and the environment. Following Brexit, it would potentially be up to each devolved parliament/assembly to substitute its own arrangements for matters within its competence and develop its own legislation and policies, although this could result in increasing divergence within the legal landscape of the UK. However, the UK Government has stressed the importance of ensuring that stability and certainty are not compromised, and that the effective functioning of the UK internal market is maintained post-Brexit.  

Although the UK Government retains rights to legislate in devolved matters and could act to harmonise otherwise fragmented policies and legislation, this could come at a political cost within the devolved nations if it did so in opposition to the wishes of their populations. Ultimately, the European Union (Withdrawal) Bill will determine the extent to which the devolved administrations may legislate to amend retained EU-derived laws within their competence. For more information, please see our blog post.

Following Brexit, will the UK Government be able to pass Brexit-related legislation modifying devolved powers unilaterally?

While the doctrine of parliamentary sovereignty allows the UK Government to repeal or amend any of its legislation, changes to legislation affecting devolved powers are normally subject to the passing of a Legislative Consent Motion by the parliament concerned under what is known as the Sewel Convention. This convention arose as a matter of stated policy during the passage of the Scotland Act 1998 but applies equally to Wales and Northern Ireland.

The decision of the Supreme Court on the question of whether parliamentary approval was needed to give notice under Article 50 of the Treaty of European Union also considered issues put forward by the devolved nations over the reach of the Sewel Convention. The Supreme Court was unanimous in holding that the UK Government was not legally required to consult the devolved administrations, in effect quashing any argument that the devolved administrations might be able to exercise any sort of veto over Brexit. Although the various Devolution Acts were passed on the assumption that the UK would be a member of the EU, the Supreme Court concluded that they do not require this to be the case. The question of whether the UK remains a member of the EU is reserved to the UK Parliament and Government.

This aspect of the decision, although widely expected, is important as it removes any suggestion that the devolved administrations will be able to exercise a veto over Brexit, or over any Brexit-related legislation.

Could Brexit lead to another referendum on Scottish independence?

At the time of the referendum on Scottish independence in September 2014, it was widely believed that a vote to remain part of the UK would settle the issue for the foreseeable future.

Immediately following the result of the EU referendum, there were calls from the Scottish National Party for another referendum on Scottish independence as, notwithstanding the overall vote to leave the European Union, 62 per cent of voters in Scotland chose to remain in the EU. On March 28, 2017, the Scottish Parliament voted in favour of a second independence referendum. However, following the 2017 General Election, the SNP indicated that it would not seek a second referendum until after Brexit.

It remains to be seen how this will develop. In particular, it is unclear whether Scotland could become an independent country and remain a member of the EU, or whether it would have to establish independence and then apply for EU membership.

What impact would loss of EU funding have on Scotland, Wales and Northern Ireland?

The devolved nations, especially Wales, have access to considerable funding from the EU from a variety of streams, including directly managed EU Funding Programmes and European Structural and Investment Funds. In some cases, EU funding is matched or supplemented by local funding, either from government or privately, and although the UK is currently a net contributor to the EU budget, Wales and Northern Ireland are net recipients. Non-EU countries such as Switzerland and Norway also contribute to EU funding for certain projects in which these countries participate.

As a result, Brexit will necessitate the UK Government having to decide whether and how funds would be re-allocated to the devolved nations generally, and regions and projects specifically.

How will Brexit affect Northern Ireland’s relationship with Republic of Ireland?

The border between Ireland and Northern Ireland is one of the key issues in negotiations regarding the terms of the UK’s departure from the EU. In December 2017, the UK confirmed that it “remains committed to protecting North-South co-operation and to its guarantee of avoiding a hard border”. Moreover, it confirms that, in the absence of any other agreement between the EU and the UK, it will maintain “full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 [Good Friday] Agreement.”

The draft withdrawal treaty proposed a "common regulatory area" between Ireland and Northern Ireland. Under this proposal, there would be free movement of goods between Northern Ireland and Ireland and Northern Ireland would be subject to EU customs rules. The upshot of this would effectively be to bring Northern Ireland within the Customs Union, thus transferring the real border between the UK and the EU to that between Northern Ireland and the rest of the UK. However, the text has not been agreed by the UK Government and the parties remain in negotiations to find a solution to the question of the Irish border. For more information, please see our blog at https://www.insidebrexitlaw.com/blog/uk-and-eu-legal-framework.


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