To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

The proposals in the EU Withdrawal Bill are at the other end of the spectrum from the Welsh suggestion. A category of ‘retained EU law’ is created and it is proposed that all such EU law revert to Westminster. Ministers have suggested that, at a later stage, some powers may again be devolved. In order to achieve this, the Withdrawal Bill amends the devolution statutes for Scotland, Wales and Northern Ireland.

This is a development of great constitutional import as the first significant rolling back of devolution since the process started twenty years ago. Under the Sewel convention, such changes normally require the agreement of the devolved legislatures themselves. This was reaffirmed after the Scottish independence referendum as the unionist parties strove to assure the public that devolved powers would not be undermined. It does appear that Westminster will seek to gain such approval through legislative consent motions. This tests the Sewel convention to its limits. The Scottish and Welsh governments have indicated that they will not recommend consent, meaning that the motions would be voted down in the Scottish Parliament and the National Assembly for Wales.

There is no doubt that, as a strict matter of law, Westminster could go ahead and take back the powers anyway. The UK Supreme Court, in the Miller case, on the role of parliament in Brexit, insisted that the Sewel convention is not legally enforceable. In fact, we knew this already. The more relevant question is the status of Sewel in our unwritten constitution and in underpinning the institutional balance of devolution. Much of the UK constitution is based on conventions. These are not, as the Supreme Court suggested, mere matters of political convenience but are part of the rules of the political game. From this perspective, the conventions around legislative consent are the equivalent, in our unwritten constitution, of those provisions that elsewhere prevent central government changing the rules of the game unilaterally. They are what distinguishes devolved national legislatures, established by referendum, from mere local authorities and give the UK constitution a federal spirit. From this perspective, the fact that it might be complicated and difficult to leave powers at the devolved level during Brexit, or that the devolved legislatures are already restricted by EU laws which the UK will merely replace, is irrelevant.

There has been no indication of what powers might, at a later stage, be transferred back to Scotland, Wales and Northern Ireland. The extent of common provisions needed across the UK will not be clear until the UK’s future trading relationship with the EU has been settled. Future free trade agreements with non-EU countries will also impinge on devolved matters. It is likely, therefore, that the UK government will retain the key powers indefinitely and devolve only cautiously. It seems unlikely that the UK government will transfer them all back or that the Welsh proposal for joint policymaking will be adopted. The administrative responsibility, however, will remain with the devolved administrations as they have the machinery in place. This introduces a principle that has, so far, been applied sparingly in the UK, of administrative devolution without legislative powers. It moves us closer to a hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

This post was originally published on the Centre on Constitutional Change blog and is re-posted with permission.

About the author

Michael Keating is Professor of Politics at the University of Aberdeen and Director of the Centre on Constitutional Change.

8 thoughts on “To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

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  5. It may be that Westminster cannot square the circle without federalism. Without federalism, the UK surely does not need a written constitution, in the sense of one comprehensive document. That is the point I was trying to make.
    a) An English government for domestic English business would diminish the disadvantages of England’s disproportionate size for the rest of the UK ;
    b) Scotland and N Ireland are entitled to leave if they wish to but full self-government may encourage them to remain within the Union;
    c) It’s not really another layer of government. It’s one tier less for all English domestic business as there would be no reference of Bills to a \House of Lords. There would be fewer politicians for the English to pay for.
    I fear that, as Westminster shows no sign of allowing ‘English business’ to be treated separately at Westminster, e,.g. the decision not to examine the changes to the Sunday Trading laws under EVEL, the UK may break up without a federal agreement. England could leave. Mrs May has a huge majority of MPs over Mr Corbyn in England and it is only the Conservatives’ attachment to the Union that gives rise to their policy of self-denial. That attachment may be weakening among the people of England.

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  7. @ Michael – is this what “taking back control” really means? An end to any meaningful devolution?

    @ Ian
    Federalism is a non-runner in the UK.
    Federalism with its separation of powers, written constitution and so on, is alien to Westminst. Remember federal states like the USA, Germany have written constitutions,

    Consider also

    a) the disproportionate size of the English population (85%)

    b) divided loyalities. as nearly half the populations in Scotland and Northern Ireland already want out of the Union.

    c) The English have already refused regional assemblies and proposals about city states. They want England to stay united. They don’t want to pay for another layer of government. They want to decide and legislate alone on matters that involve England. They have every right to want all these things. For themselves, I mean.

    How Westminster will square the circle with the other parts of the UK does not bode well for anyone

  8. ‘..and that common frameworks, where necessary, should be negotiated among the four UK nations.’ I may have misunderstood but the Welsh Govt’s proposals do not seem to refer to ‘four UK nations’ which would imply a voice for England. They refer to the three devolved nations and the UK. I would like to think that England would have its own say but it seems unlikely as there is no English Parliament or First Minister. England does not have seat on the British-Irish Council. Some ago, the UK Government snuffed out a proposal that England should be represented in the Youth Parliament. Do you envisage that changes in the hierarchy of devolution could lead to a federal union, in which England would become a participating nation?

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