Brexit risks never-ending standoff with Scotland and Wales

by Luke Lythgoe | 16.05.2018

The Scottish Parliament’s refusal to consent to Theresa May’s EU Withdrawal Bill is the latest flashpoint in a 23-month-long stalemate over how devolution will work after Brexit. The UK Parliament has the power to ignore Scotland’s concerns, although Westminster has never broken a convention that it will get Edinburgh’s approval when devolved laws are concerned.

This is potentially a very damaging moment for the Union. And there’s no end in sight. It’s more than likely that rows over who gets to use devolved powers, and how, will flare up for years after Brexit – not just with Scotland but with Wales and Northern Ireland too – chipping away at goodwill among the UK nations.

This is an incredibly complex can of worms that, without Brexit, would have stayed firmly sealed.

The Brexit devolution conundrum

Two decades ago the UK government agreed to devolve some policy areas – such as agriculture, fisheries and environmental protection – to Scotland, Wales and Northern Ireland. That meant the different national assemblies could legislate on those policies within their nation.

However, in practice many of these laws were actually made at EU level. This made sense because standardising things like animal health rules or what information needs to appear on food labelling helps the EU’s single market to run smoothly.

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With Brexit these powers will all return to the UK. But to which government? Because these powers were part of the devolution agreements, both Scotland and Wales have insisted control go directly to them. The UK government argued that if each nation started legislating differently on these issues, then trade within our own internal market would get gummed up.

All the nations agree that common UK-wide frameworks are necessary for some areas. For example, if one nation set higher food hygiene standards then it might also want to restrict food manufactured in other nations with lower standards from entering its supermarkets.

The problem is that Scotland wants these frameworks to be based on explicit consent from the devolved parliaments when any changes are made. Westminster sees this as effectively giving Scotland, Wales and Northern Ireland (which currently doesn’t have a government and is therefore not involved in the debate) a veto on UK-wide policies, undermining the sovereignty of the UK Parliament.

Welsh breakthrough just sticking plaster

Last month Westminster and Cardiff agreed how to transfer powers from Brussels. The deal is complicated – and this is only a sticking plaster to bridge the gap between Brexit and getting some proper UK-wide frameworks agreed.

Both governments have agreed that 24 of the areas being transferred from Brussels will – at least in part – need some mutual rules. These policies are to be effectively frozen in line with the current EU rules as far as possible, until a common framework is agreed for how new laws will be made going forward. This policy freeze is being done by regulations, drafted by the UK government, approved at draft stage by Cardiff, then passed through the UK Parliament. The regulations will expire no later than seven years after Brexit.

From Cardiff’s perspective, this solves two problems: devolved powers aren’t actually passing to Westminster, just being frozen; and the UK government can’t freeze the powers indefinitely.

But what next?

What the Welsh deal doesn’t do is get us any closer to what the nationwide framework should look like. The devolved governments will likely push to have explicit consent in devolved matters. That’s why Scotland is still holding out. And after signing the UK-Wales deal, Welsh finance minister Mark Drakeford made a point of saying the governments now needed to “deal with each other as equals”.

Taken to its extreme, this would effectively mean each government having a veto on nationwide policies, from fisheries management to food labelling. That’s a big shift from the original intention of the devolution agreements. Decisions made by one national assembly could impact the legislation of the others. “We cannot go down that road,” warned Scotland’s advocate general, who advises the UK government on Scottish law.

But if Westminster tries to pull rank on Scotland and Wales in devolved areas, then that damages the devolution agreement itself and will likely lead to considerable resentment.

Seven-year countdown

The other question is what happens if no common framework is agreed within the seven-year time limit? This is about as clear as mud.

True, the powers would revert to Welsh control – in theory they would have never left Wales, but were just frozen for a fixed time period. But Westminster is sovereign, so it could legislate in these areas if it really wanted to. Whether it would do so against Welsh opposition is a political decision. A political agreement known as the Sewel Convention means it wouldn’t normally do so – but this isn’t legally binding.

What you’re potentially left with is a total mess, with different governments introducing separate legislation, probably resulting in frantic backroom deals. So even if Westminster and Holyrood do overcome their current stalemate, expect further disputes for years to come. This would give Edinburgh a steady stream of examples to justify another bid for independence.

If voters don’t like that idea – if they expected Brexiters to be true to their word when they promised the Union would be stronger than ever after we left the EU – then there should be a people’s vote on the final outcome of the Brexit deal.

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Edited by Hugo Dixon