8 challenges Brexit poses to the devolution settlements

The Institute for Government has just released a report setting out the challenges that Brexit poses to the devolution settlements.

Obviously, the main challenge, as we have pointed out many times, is that Brexit shows that the devolved administrations and the nations those administrations represent have no meaningful power.

I have previously compiled a list detailing examples of democratic outrages that the populations of most nations in the world would not put up with in relation to Scotland’s Brexit experience.

  • The party that called the Brexit referendum received less than 15 percent of the vote in Scotland at the General Election.
  • The referendum could have ensured that all countries of the UK needed to support Brexit for it to happen. The Tories, who Scotland never voted for, refused to make that a rule.
  • Scotland voted to stay in the EU but we have to leave regardless.
  • The Supreme Court decided that the Scottish Parliament does not even need to be consulted about its views on article 50.
  • The EU Withdrawal Bill, which is the mechanism for replacing EU law with UK law currently means that the UK government will have to change the devolution settlement.
  • The Bill also paves the way for the UK government to unilaterally alter laws that should be made in Holyrood.
  • The Bill, in its current form, means the UK government is set to gain powers that should return to Scotland from the EU by default.
  • The debate over the impact of the Bill on Scotland bypassed the democratically elected House of Commons and Scotland’s fate is now reliant on the goodwill of unelected peers.
  • The UK government is almost certainly going to take the Scottish government to the Supreme Court over the Scottish government’s plan to protect the devolution settlement and prevent a power grab.
  • The UK government is able to proceed with its plans due to the fact it paid a bung to the DUP in order to buy its support.
  • The solution to our lack of sovereignty would be a second independence referendum but, despite the democratically elected Scottish Parliament voting to hold one, the UK government refused to respect this vote.

The Institute for Government report takes most of that important stuff for granted. Which at least in the case of Scotland is understandable as we did vote for this situation in 2014. We became the first nation in history to vote against our own sovereignty in exchange for pooling and sharing and remaining in the EU. Oh well, it seemed plausible at the time, I guess.

Their report does highlight eight areas in which the devolution settlements could be put in further jeopardy if the UK government tries to centralise power.

I won’t hold my breath on workable solutions being found that are fair to the devolved administrations. However, in the spirit of inquiry, here are the eight areas that could produce more friction and the author’s recommendations for each one.

Challenge One: Reaching agreement on new frameworks

Most of the 41 environment, agriculture and fisheries policy areas which have been devolved but which to date have been dealt with by the EU will require some kind of four-nation agreement after Brexit. In approaching these agreements, the UK Government will need to balance its own desire for a robust, UK-wide statutory underpinning, with the political and constitutional realities of devolution in the UK. Decisions on the scope of new agreements should be based on the principles agreed by the four governments in October 2017.

Opting for non-legislative agreements would avoid some of the political handling issues of UK-wide legislation. However, there are likely to be some challenges in operating such non-legislative agreements in practice, for example determining how disagreements or disputes are to be managed.

The small number of areas in which UK-wide law is unavoidable, such as chemicals and animal health, new legislation should be agreed with the devolved administrations and then passed with the consent of their legislatures. In managing this process, avoiding a repeat of the political stand-off taking place over the EU withdrawal bill will require early, meaningful engagement between the UK Government and the devolved administrations.

Challenge Two: Distributing funding between the four nations

One of the most politically contentious issues will be how any replacement for EU funding should be distributed between the four nations. Within the policy areas we are looking at, this is most relevant for agricultural financial support. The four nations could agree to distribute money through the ‘block grant’, which accounts for a significant portion of the devolved administrations’ budgets, or come up with an alternative means of ring-fencing a budget with a separate mechanism to reflect changes.

The four nations will also need to agree a policy framework to restrict how money can be spent. While this must recognise the UK’s international obligations – for example, commitments made in trade deals or multilateral environmental agreements – the UK Government will need to honour its commitment that the devolved administrations will continue to have at least the current levels of flexibility.

Challenge Three: Co-ordinating UK-wide input into international negotiations

The UK’s increased ability to strike international agreements after Brexit will require new consultation mechanisms to ensure the views of the devolved administrations can be heard. New JMC sub-committees should be established, including on international trade, to provide a forum for consultation.

In order to understand the options for enhancing the involvement of the devolved administrations in negotiations, the UK should look to international examples, particularly the involvement of the Canadian provinces in the Canada–EU Comprehensive Economic and Trade Agreement negotiations.

Challenge Four: Updating intergovernmental agreements in the future

Agreements reached between the UK Government and the devolved administrations will inevitably, at some point, need to change. New governments will bring new priorities, while international agreements will bring external pressures for change. UK-wide agreements must therefore contain provisions that outline how they can be updated.

Challenge Five: Establishing new regulators and public bodies across the UK

If the UK chooses to leave – or fails to negotiate access to – EU environmental agencies, it will need new regulators and institutions to manage the implementation of functions currently exercised by the EU that will return to the UK, for example those of the European Chemicals Agency. New public bodies should be UK-wide wherever possible, as this pools expertise, is more cost efficient, and reduces compliance costs for business. These bodies should be co-designed between the four nations, with shared ownership and funding. Where shared bodies are not possible as the four nations pursue different policy priorities, separate bodies should nonetheless co-operate, with common research and analytical resource.

Challenge Six: Ensuring the governments comply with their commitments

Michael Gove, the Secretary of State for Environment, Food and Rural Affairs, has proposed a new government institution to ensure government compliance with environmental standards after Brexit. The current proposal is for this body to operate in England only. However, a new environmental watchdog would be more robust if it was given a four-nation remit, and was designed and owned jointly by the four nations. The body could be made more independent and less likely to be abolished under subsequent political leadership if it reported to, and was co-funded by, the four legislatures rather than just the UK government.

Challenge Seven: Ensuring the four legislatures hold the governments to account for agreements between countries

There is currently no formal role for the four legislatures in scrutinising agreements between the four nations of the UK. In key policy areas now subject to agreement between the four nations, there should be clearer legislative accountability.

The four legislatures should work together to improve their relations with each other to help support the scrutiny of new agreements, including via joint evidence sessions, and inquiries and interparliamentary forums.

Challenge Eight: Ensuring post-Brexit policy is informed by external stakeholders

There is an opportunity for the UK Government and the devolved administrations to involve external stakeholders as they design new policies in shared policy areas after Brexit.

An urgent review of how the four governments can work together in light of Brexit should address transparency, opening up the JMC process. This should allow civil society and industry an opportunity to make a positive contribution to the processes of post-Brexit policymaking and implementation.

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