Brexit causing constitutional clash with Scotland and Wales

by Kirsty Hughes | 06.03.2018

The challenges Brexit poses to the Northern Irish peace process and Good Friday Agreement have been closely followed. But leaving the EU is also upsetting the existing constitutional settlement in terms of the powers of the Scottish parliament, Welsh assembly and Northern Ireland assembly.

The Scottish  parliament, since the Scotland Act in 1998, has had devolved powers in a wide range of areas including agriculture, fisheries and the environment. Many of these areas were covered by the UK’s participation in the EU, with policies and laws from the common agricultural policy to environmental regulation set at EU level.

The EU Withdrawal Bill, with its Henry VIII powers and more, is intended to bring all the EU’s laws onto UK statute books in time for Brexit – minus the Charter of Fundamental Rights. Theresa May’s government decided that letting all EU laws in devolved areas go back to Scotland, Wales and Northern Ireland could create challenges at the UK level, with common UK frameworks needed in many areas. To deal with this, they simply declared that EU powers would first come back to Westminster and then some of those would be passed on to the devolved administrations.

This cavalier approach to the existing devolution settlement caused genuine anger and a political stand-off between the UK, Scottish and Welsh governments (Northern Ireland has been left out of the loop without an executive). Holyrood is demanding that all 111 areas currently at EU level return to Scotland. Both Nicola Sturgeon and her Welsh counterpart Carwyn Jones have recognised that there may be a need for common UK frameworks in some areas but they want all devolved powers returned to Scotland and Wales first, plus a genuine say in those future frameworks.

Last week, the Scottish and Welsh governments decided their views were still being ignored – the compromises offered by the UK government were not enough. So, in a remarkable legal and political stand-off, both Scotland and Wales have introduced their own version of the EU Withdrawal Bill for devolved powers – so-called “continuity” bills.

The Scottish parliament last week voted 86 to 27 in support of an emergency timetable to rush the bill through – against the advice of the parliament’s presiding officer but with the support of Scotland’s Lord Advocate. Four out of the five parties in the Scottish parliament supported this move: the SNP, Greens, Lib Dems and Labour, with just the Conservatives against. The Welsh assembly is due to debate their bill today, and it already has the support of the Welsh presiding officer.

This might look to some like a pro-independence move by the Scottish government if it weren’t for the fact that the Welsh government is equally up in arms and that four parties supported the Scottish move. The stand-off is genuine. Nor is it an anti-Brexit move per se. The Scottish government opposes Brexit but has recognised from the start that a withdrawal bill would be needed.

May and Sturgeon are due to meet next week but an agreed compromise is looking tricky. Both the Welsh and Scottish continuity bills could end up in front of the Supreme Court to test their validity. Brexit is weaving a tangled web indeed and whether May has the political skills to resolve this one is an open question.

Kirsty Hughes is Director of the Scottish Centre on European Relations.

Want more InFacts?

Click here to get the newsletter

    Your first name (required)

    Your last name (required)

    Your email (required)

    Choose which newsletters you want to subscribe to (required)
    Daily InFacts NewsletterWeekly InFacts NewsletterBoth the daily and the weekly Newsletter

    By clicking 'Sign up to InFacts' I consent to InFacts's privacy policy and being contacted by InFacts. You can unsubscribe at any time by emailing [email protected]

    Edited by Luke Lythgoe

    One Response to “Brexit causing constitutional clash with Scotland and Wales”

    • how can the UK hold the ring on trade with the EU and have for example a treaty adopting eu competition law and still devolve powers to Scotland to run agriculture which will enable Scotland to subsidise agricultural more than England ?

      whilst at the same time having an ” internal UK market” ?

      either an internal border must be set up to prevent unfair competition

      or the power to run agriculture will have to go back to Westminster