Brexit and Devolution
Since the Brexit referendum the UK government has been criticised for failing to recognise the positions and concerns of the devolved governments. The concerns escalated with the publication of the EU (Withdrawal) Bill. The House of Lords EU Committee has referred to the implications of Brexit on the devolved regions of the UK and on the devolved settlements as one of the most complex and politically contentious elements of the Brexit debate. In an article in the JSP we examined the role of the devolved administrations in EU decision making, the impact of EU programmes, funding and directives on the devolved areas, the post referendum concerns of the devolved governments and their approaches to the Brexit negotiations. While the referendum results were very different between Scotland and Wales, there has been consensus in the concerns expressed and the criticism of the Westminster government’s treatment of the devolved legislatures in the Brexit process. In Northern Ireland, the two majority parties, Sinn Fein and the DUP adopted different positions on the referendum and the collapse of the Northern Ireland government in January 2017 has meant there has been no formally agreed position or input from the Northern Ireland Executive.
A key area of dispute between the Welsh and Scottish governments and Wales and Westminster relates to the repatriation of EU powers. Both devolved governments have been clear that they expect EU competences in the devolved policy areas would lie with their administrations. The assumption by the UK government in the EU Withdrawal Bill (2017) is that repatriated powers would become the responsibility of the Westminster Government and they would then decide what was to be devolved. The policy areas covered include rural development, agriculture, the environment and justice. The Scottish and Welsh Governments may refuse to give legislative consent for the Bill, as required, if it remains in its current form. They have moved amendments to the Bill to remove provisions which restrict the devolved governments’ competence over retained EU law, even in areas of devolved responsibility. So far there is no guarantee from the UK government that everything that is devolved will remain devolved. Potential difficulties may also arise in policy areas with overlapping powers between the devolved administrations and the UK government. Both the Welsh and Scottish governments fear that adjustments to the devolution settlements would narrow the powers of devolved administrations.
With the Northern Ireland Executive in limbo it has made no contribution to this debate but a complicating factor has been a political deal reached between the Conservative party and the Democratic Unionist Party (DUP) whereby Northern Ireland will receive an extra £1bn in funding in return for DUP support. This Confidence and Supply Agreement will ensure a Conservative majority in the House of Commons on certain votes, including Brexit legislation. The legitimacy of the funding deal has been challenged by the Scottish and Welsh governments on the grounds that the proposed expenditure is mainly on devolved areas of health, education and infrastructure and should therefore generate Barnett consequentials of £1.6bn for Wales and £2.9bn for Scotland. They have invoked a formal dispute resolution procedure on the grounds of a breach of the Treasury Statement of Funding Policy for Devolution.
With regard to the Social Policy implications of Brexit for the devolved areas, the possible economic consequences and uncertainties, including access to the Single Market and customs union have been a priority for governments in Scotland and Wales and all three devolved administrations have expressed concern about restrictions on freedom of movement and migrant labour. Scotland may adopt a plan to pay for a settled status application fee required of EU citizens working in the public sector. The publication of the Withdrawal Bill has also seen increasing concerns about the protection of equality and human rights frameworks and the need to identify potential adverse impacts on those with protected characteristics under equality law. Questions relating to the end of the jurisdiction of the Court of Justice of the European Union and maintaining EU policy initiatives and funding to support equality and good relations have also escalated.
As the Brexit discussions have gathered pace and the devolved governments have been sidelined from the official negotiations the focus of the devolved administrations have changed. Specific issues relating to Northern Ireland, including the land border with the Republic of Ireland, have become a core aspect of the UK/EU Brexit negotiations with the border one of three issues the EU requires resolution on before proceeding to trade negotiations. The continuation of the Common Travel Area between the UK and Ireland is one of the few areas of agreement. The Scottish Government has shifted from the centrality of another independence referendum and both Scottish and Welsh governments have increasingly focused on the potential implications of developments for the devolved settlements and devolved powers. They have also begum to look at how they might use their devolved powers to mitigate what they identify as potential adverse impacts of Brexit, a strategy also raised in the DUP deal for Northern Ireland.