The scope of devolved institutions to set their own laws has been increasing steadily since the 90s. Tony Blair and New Labour helped establish the power-sharing government at Stormont and gave further powers to Holyrood. However, the Brexit process could bring disruption to this steady decentralisation of power within the UK.
What Is Being Proposed?
There are currently a wreath of different regulations and areas of law (around 158) that are governed EU wide from Brussels, but this will no longer be the case post-Brexit. Most laws will be devolved directly to the national governments, but the government has identified 24 areas where they would like to be able to legislate for the entire UK.
They say that this is only a temporary measure designed to avoid any regulatory divergence within the UK single market, to ensure a smooth departure from the EU. The problem is that some of these powers will fall into areas in which the devolved institutions have control over, including agriculture, fisheries, environmental protections, food regulation and animal welfare.
The SNP have been particularly vocal about this part of the bill, describing the move as a ‘power grab’ by Westminster. To make matters worse, when this bill was making its way through the house, there was only a few minutes of allocated debate time after voting on other amendments to the bill ran on.
The SNP staged a walkout from PMQ’s the next day to protest the disregard for the effects of Brexit on devolution and their concerns about repatriating power to Westminster on a long term basis. Scottish Brexit minister Mike Russell said this would give UK ministers “a totally free hand to pass legislation that would directly affect Scotland’s fishing industry, our farmers, our environment, our public sector procurement rules, the safe use of chemicals and our food safety,” while Holyrood’s “hands would be tied”.
Consult or Consent?
The disagreement essentially boils down to one word, ‘consult’ or ‘consent’. ‘Consult’ would allow the UK government to overrule the wishes of devolved governments, whereas the government fears that ‘consent’ would give the national governments leverage over the Conservatives at Westminster. The issue is that these powers could be retained for up to seven years after Brexit takes place.
In May, MSPs voted in Holyrood to refuse consent for the Brexit legislation, hoping to garner some sort of special deal for Scotland. They took a variety of diverging stances from the Westminster bill, including recognising the EU Charter of Fundamental Rights.
This week, the Supreme Court are to consider whether this legislation is constitutional – it is thought that many of the areas where Scottish MSPs voted to diverge from Westminster do not fall under the powers devolved to Holyrood and will therefore be ruled as unconstitutional. This is the first of such cases in 20 years of devolution.
Northern Ireland has been offered special status as a form of stepping stone between the UK and Europe and the SNP have questioned why Scotland would be prevented from getting a similar post-Brexit trading arrangement.
Earlier in the year, the Supreme Court ruled that the UK government was not legally required to consult the devolved administrations over the passage of the Brexit bill. There had been talk of Holyrood attempting to veto the Brexit deal as they attempt to keep Scotland in the Single Market, but this ruling meant that Westminster had ultimate power over Brexit.
This ruling is in slight contradiction to the Sewel Convention. The Sewel Convention provides that although parliamentary sovereignty allows the UK Government to repeal or amend legislation, changes to legislation affecting devolved powers are normally subject to the passing of a legislative consent motion by the parliament concerned. However, this is simply a convention and the Scotland Act 1998 does indicate that this is not required in all cases.
In Northern Ireland, there has been no government since December 2016, the DUP and Sinn Fein were close to reaching an agreement for government, but podcast interviews with numerous MLAs point to the DUP walking away when they feared their membership could not stomach the deal over the Irish Language Act. The DUP also hold power over the Conservatives, providing them with crucial votes in the House of Commons that have helped them get over the line in numerous votes on Brexit amendments.
With the tenuous position of the Conservatives attempting to navigate the Withdrawal bills through a house in which there is no majority for any form of Brexit, they are unlikely to push the DUP restore power-sharing at Stormont.
This lack of neutrality from the UK government has undermined cross community relations in Northern Ireland. Kirsty Hughes, director of the Scottish Centre on European Relations (SCER) in Edinburgh, and Katy Hayward, a reader in sociology at Queen’s University Belfast, said that the Brexit process had deepened political divisions in both devolved areas.
Devolved powers are being restricted by the government in certain areas in an attempt to retain the integrity of the internal UK market. Just how long they hope to hold onto these powers is another matter entirely, but it is unlikely they will risk continual undermining of Holyrood, Cardiff, or Belfast, lest they exacerbate the likelihood of independence or Irish unity referendums from Scotland or Northern Ireland.