Brexit - The devolution question

Publication | April 2017

Where existing EU regulation covers areas of devolved powers, what will the impact of Brexit be?
Following Brexit, will the UK Government be able unilaterally to pass a Brexit-related legislation modifying devolved powers?
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?

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. The UK Government’s Great Repeal Bill White Paper notes that it will be important to ensure that stability and certainty is not compromised, and that the effective functioning of the UK single market is maintained post-Brexit. Accordingly, the White Paper proposes that the UK Government will enter into discussions with the devolved administrations to identify where common frameworks need to be retained in the future. This suggests that the UK Government may seek to ensure UK-wide frameworks in areas of devolved competence. 

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.

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

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 recent decision of the Supreme Court on the question of whether parliamentary approval is needed to give notice under Article 50 of the Treaty of European Union1also considered issues put forward by the devolved nations over the ambit 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.

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.

However, notwithstanding the referendum decision for Scotland to stay in the UK, the Scottish National Party (SNP), which advocates strongly in favour of remaining within the EU, won 56 of 59 UK Parliament seats for Scotland in the May 2015 UK general election. The SNP manifesto made it clear that continued membership of the EU was “overwhelmingly” in Scotland’s interests, a position generally supported by subsequent opinion polling.

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. Ultimately, the UK Parliament would most likely be required to agree to a second independence referendum and the Government has so far indicated that this will not happen before the UK leaves the EU.

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. Insofar as Scotland is required to apply for membership (as the Commission have previously indicated), it is likely that Scotland would be required to accept the euro and the Schengen Agreement, necessitating a hard border between England and Scotland.

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 could 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?

Following the result of the EU referendum there were calls for a referendum on Northern Ireland's future and it remains to be seen how this will develop. The border between the Republic of Ireland and Northern Ireland is the UK’s only land border with an EU state – and indeed its only land border. The Government’s February 2017 White Paper stresses the importance of retaining the Common Travel Area between Northern Ireland and the Republic of Ireland. The White Paper describes the UK’s aim to have as “seamless and frictionless” a border as possible between Northern Ireland and Ireland to protect reciprocal treatment of each other’s nationals once the UK has left the EU – something which the Irish Government is also in favour of.


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