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Brexit's long shadow over devolution

Source: PSE June/July 2018

The EU Referendum and the stop-start Brexit negotiations have left a looming shadow of uncertainty over devolution in the UK, writes Anthony Salamone, research fellow and strategic advisor at the Scottish Centre on European Relations.

Brexit is unquestionably reshaping the politics and public sector of the UK. The results of the EU Referendum rather expeditiously ushered out the tacit consensus in Westminster in favour of EU membership, replaced by majority support for Brexit – whether motivated by ideology, democratic principles or pragmatism. Nevertheless, Parliament remains divided over the form of Brexit, with significant underlying backing for a ‘soft Brexit,’ contrasted with the government’s committed course towards a ‘hard Brexit.’

Such is the continuing extent of those divisions that, two years on from the referendum, the appellations of ‘Leave’ and ‘Remain’ continue to be applied to politicians and other figures when appearing in the media and elsewhere. The question of what kind of Brexit is rooted in the escapable fact that, despite rapid and substantial attempts at revisionism, the EU Referendum delivered only a verdict to leave the EU, and nothing on the design of the UK’s future relationship with it.

This maelstrom of Brexit portends an uncertain future for the devolved settlements for Scotland, Wales and Northern Ireland (devolution within England being more sporadic and less constitutionally imbued). European Union membership is embedded into the very architecture, including through a responsibility to implement EU law in areas of  competence and an obligation not  to legislate contrary to EU law. Accordingly, Brexit heralds a transformation in how devolution functions – and the overriding questions have been how that change will be shaped and who will decide.

The main operating premise has been that, upon EU withdrawal (though potentially deferred during a Brexit transition), general EU law requirements will end, giving the devolved authorities, in effect, greater control over areas in which they are already competent. However, disagreement arose over the extent to which those enhanced powers should be subject to centralisation at UK level – and, by extension, what role the devolved institutions should have in that process. This synopsis encapsulates the devolution debate around the EU Withdrawal Bill, for which the UK Government has sought legislative consent.

Following protracted negotiations, Cardiff and London reached an agreement and the Welsh Assembly has given legislative consent to the bill. However, at the time of writing, Edinburgh has not agreed and the Scottish Parliament has refused legislative consent. In a cross-party vote, the SNP, Labour, Greens and Liberal Democrats all supported withholding consent, with only the Conservatives opposed. This rejection therefore reflects widespread concern and cannot simply be ascribed to posturing on independence.

Despite this landmark response, the UK Government has made clear that it intends to proceed with the EU Withdrawal Bill. A Supreme Court challenge equally looms for the Scottish EU Continuity Bill, Holyrood’s own flagship Brexit legislation. While the notion of a ‘constitutional crisis’ has regularly been mentioned in this context, ‘persistent constitutional conflict’ would likely be  a more apt description of present circumstances. Even at a late stage, the Scottish and UK governments could still reach a deal, which would presumably suit both sides, and reduce the scope of the conflict.

Beyond the direct impact of Brexit on the foundations of devolution, the devolved governments have also been concerned with representing their interests in the Brexit negotiations. Particular areas such as fisheries, which are important to Scotland, might be treated differently between Edinburgh and London. More broadly, the Scottish and Welsh governments have made the case extensively for a soft Brexit. The general view, from Scotland in particular, has been one  of frustration at the limited interest and engagement of the UK Government.

Brexit therefore raises wider questions about relations between London and the other governments of the UK. In that respect, the manner by which the UK Government conducts the Brexit process matters, alongside the substance of EU withdrawal. Recent developments point to the need for a serious discussion on the constitutional governance of the UK – including arrangements to safeguard the rights and powers of the devolved institutions. Brexit could cast a long shadow over devolution, extending far beyond March 2019.


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