Brexit ten years on: devolution

Ahead of the ten year anniversary of the EU referendum on 23 June, UK in a Changing Europe experts have written a short series of blogs reflecting on some of the issues at the heart of Brexit then and now. Here, Nicola McEwen reflects on Brexit and devolution.

The UK voted to leave the European Union a decade ago while Scotland, along with Northern Ireland, voted to remain. Those divergent choices marked a shift not just in the UK’s relationship with its European partners, but in the political and institutional relationships between the constituent parts of these islands.

The implications of Brexit for Northern Ireland dominated Brexit negotiations. Accommodating its distinctive status has been a key aspect of the Trade and Cooperation Agreement. Considerably less effort went into accommodating Scotland’s distinctive preferences. Early proposals to facilitate a special relationship with the EU, including within the EU internal market, were quickly dismissed without much consideration. And over the past decade, the politics and process of leaving and living outside of the European Union have contributed to a weakening of the authority of the devolved institutions and perhaps of the Union itself.

EU law provided a regulatory architecture that supported devolution in the UK, limiting the likelihood of policy divergences producing market distortions. As a political community in which sovereignty was explicitly pooled, the EU also helped to reconcile the doctrine of Westminster parliamentary sovereignty with the principle of sharing political authority across the UK’s constituent units, while facilitating the plurality of political and territorial identities on these islands. The Brexit drive to reassert ‘national sovereignty’ and to ‘take back control’ sat uneasily alongside these shared sovereignty norms and self-government claims that underpinned devolution.

One manifestation has been a weakening of the Sewel convention. This convention held that, although its sovereignty was not affected by devolution, the UK Parliament would not normally legislate on devolved matters without the consent of the devolved legislatures. The corresponding process of securing legislative consent became a routine feature; consent was rarely withheld, and when it was, it was usually temporary pending a negotiated compromise.

That was until the Brexit referendum. When the UK government passed the EU (Withdrawal) Act 2018, it did so without the Scottish Parliament’s consent, which Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales, described as ‘a terrible precedent’. Breaching the convention became much more frequent as the Brexit process got underway. Then Welsh First Minister, Mark Drakeford noted: “The Sewel convention was never breached, not once, by Conservative Governments, as well as Labour Governments, for nearly 20 years… we now see… the breach of Sewel becoming almost normalised.”

Perhaps the most blatant breach was also the most controversial of the Brexit legislation introduced by the UK government. The four administrations had been working together to explore whether and how they might develop ‘common frameworks’ in some areas where EU law intersected with devolved law, to avoid unnecessary divergence after the UK left the EU. That cooperative process contrasted with UK government legislation to underpin the UK internal market.

The UK Internal Market Act (2020) was passed in the face of fierce opposition from the devolved institutions. It introduced two Market Access Principles (MAPs). The first ensures that goods and services that can be legally sold/provided in one part of the UK can be sold anywhere in the UK, without having to meet further requirements. The second protects businesses and professionals from being subject to direct or indirect discrimination that favours local goods or service providers.

The effect has been to erode the legal authority of the devolved parliaments and inhibit their ability to introduce distinctive legislation that regulates goods and services. A process was established to permit exclusions from the MAPs, but this delays law-making, creates uncertainty, masks accountability, and has, in effect, given the UK government a veto over devolved legislation that falls within the MAPs’ scope. ‘In effect’ because the UKIM Act does not explicitly curb the competence of the devolved legislatures to pass laws that regulate the market in distinctive and divergent ways, but in restricting the application of such laws to goods and services that originate in local markets, it renders them unworkable.

The most notable example of this process disrupting policy making emerged when the Scottish Government legislated for a deposit return scheme (DRS) to boost recycling. In so doing, they sought to move faster than similar schemes elsewhere in the UK and with a broader scope that included glass bottles. When the requested exclusion from the MAPs was eventually offered by the UK government, it was on a temporary basis and excluded glass, citing powerful business concerns about interoperability of DRS schemes and ‘unnecessary barriers to trade’. The Scottish Government subsequently put its scheme on hold, the company set up to administer it collapsed, and the waste firm, Biffa, sued the Scottish government – unsuccessfully – for £50 million in damages. These Brexit-related developments led to a significant deterioration in relationships between the UK government and its Scottish and Welsh counterparts.

As part of its ‘reset’ of intergovernmental relationships, Keir Starmer’s government has worked more cooperatively with the devolved governments in the implementation of the Sewel convention, despite negotiations to agree a new Memorandum of Understanding on how it should operate failing to reach agreement thus far.

The Labour government also brought forward the statutory review of the UKIM Act, softening some of its hard edges. Exclusion requests should now be considered within the cooperative common frameworks process, with evaluations of environmental protection and public health benefits to be weighed up against the economic costs of regulatory divergence.

But the government is committed to retaining the Act, despite it remaining deeply controversial and a barrier to strengthened relationships.

The Brexit referendum also had the immediate impact of reigniting the issue of Scottish independence. Its 62% Remain vote led to claims that Scotland was ‘being taken out of the EU against our will’, which then-First Minister Nicola Sturgeon said was a ‘significant and material change of the circumstances in which Scotland voted against independence in 2014’. Brexit also increased discussion among the ‘indycurious’ in Wales.

The recent election victories for Plaid Cymru and the Scottish National Party, the devastating defeats for the Labour Party, and the emergence of Reform UK as an electoral force are testament to some of the political legacies of Brexit. Though neither the Scottish nor Welsh parliaments have the constitutional competence to pursue the SNP and Plaid’s self-government ambitions, the vote to leave the European Union a decade ago continues to test the resilience of the UK Union today.

By Nicola McEwen, Professor of Public Policy and Governance, University of Glasgow Centre for Public Policy.