The UK-EU SPS agreement and devolution

Ahead of next week’s EU alignment Bill, Catherine Barnard and James Wolffe KC consider the key issues that could arise as part of any SPS deal agreed by the UK government on devolved governments in Scotland and Wales.

If and when a UK-EU SPS agreement is agreed, constitutional questions arise not only for the UK government (UKG) and Parliament, but also for the devolved institutions in Cardiff and Edinburgh. That is because the SPS agreement concerns areas of ‘non-reserved’ (i.e. devolved) competence where domestic policy responsibility rests with the Welsh and Scottish governments, accountable respectively to the Senedd and the Scottish Parliament.

The UK-EU Memorandum of Understanding (MoU) refers to ‘timely dynamic alignment’ with the relevant EU rules in ‘Great Britain’. However, it also requires ‘due regard’ to the UK’s ‘constitutional and parliamentary procedures’, which presumably includes the arrangements for Wales and Scotland (the MoU does not apply to Northern Ireland, where the relevant rules already apply under the Windsor Framework). What will this mean? We don’t know, but we have five questions.

First, how are the policy interests of the devolved institutions being considered in UKG’s negotiating position? International relations are reserved to the UK, so UKG is negotiating the SPS agreement for the whole of the UK. The MoU envisages limited, but tightly defined, exceptions to dynamic alignment. The devolved institutions may have an interest in the scope and content of any such exceptions. What input have they had into those discussions?

Second, assuming an SPS agreement is done, the MoU provides that the European Commission should consult ‘the Government of the United Kingdom’ at an early stage of policymaking, giving it a ‘decision-shaping’ role over EU laws to which it dynamically aligns. How will UKG, representing all parts of the UK, accommodate any distinctive devolved policy perspectives in decision shaping? There is also an important subsidiary question: how will the devolved administrations keep abreast of emerging or future EU initiatives within the agreement’s scope so that they may advance their policy position?

Third, how will the SPS agreement approach dynamic alignment? Will it be automatic, like the Gibraltar agreement (Gibraltar must follow EU rules in the areas specified or the agreement falls), semi-automatic like the Windsor Framework (NI must follow EU rules but subject to the Stormont Brake or applicability motion), or contain a ‘hurdle’, as in the Swiss case, where the measure applies in Switzerland only following a decision by a joint EU/Swiss committee. If there is to be an equivalent to the “Stormont Brake”, will the Senedd or the Scottish Parliament be able to apply it? If the Swiss model is followed, how would any devolved policy interests be considered in that decision-making process?

Fourth, how will dynamic alignment be delivered? One option would be a statutory provision like the old s.2(2) of the European Communities Act 1972, or the general power already available to Scottish Ministers in s.1 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. These allow relevant EU measures to be implemented by subordinate (i.e. secondary) legislation, not Acts of Parliament. If that approach is taken, it will invite questions about the mechanisms of scrutiny not only by the UK Parliament but by the Senedd and the Scottish Parliament.

Further, if dynamic alignment is delivered through subordinate legislation, how will this take account of devolution? There are competing constitutional considerations: the responsibility of the devolved governments for devolved policy, which is the central feature of devolution; and UKG’s interest in ensuring that the UK’s international obligations are fulfilled.

There might legitimately be divergent approaches to the detail of implementation in different parts of the UK. That was permissible under EU membership when directives were being implemented, and there seems no good reason why it should not also be possible (subject to UK Internal Market Act 2020 considerations) where an EU measure covered by the SPS agreement can be implemented in different ways.

There are three models. The first, consistent with the territorial allocation of policy responsibility, would give Welsh and Scottish ministers the relevant powers, with UKG implementing for England. The UK’s international position would be protected by the ‘backstop’ provisions in the devolution statutes under which UKG can prevent devolved ministers breaching the UK’s international obligations.

The second would allow either UKG or devolved ministers to exercise the relevant powers. This was the approach taken to implementing EU obligations when the UK was an EU member state. A concordat set expectations for inter-government consultation and recognised that it was for devolved ministers to decide whether to exercise their powers or to opt for GB or UK-wide regulations instead.

The third, often (if controversially) used since Brexit, would be to give UKG the relevant powers. If this option is adopted, a key issue will be the robustness of the procedural safeguards for the interests of the devolved Governments and legislatures and the integrity of the devolution settlement.

Fifth and finally, will there be any scope for different approaches to be taken to implementation of EU legislation in the different parts of the UK? There are multiple scenarios which could arise. We consider three.

What if UKG negotiates an exception to the SPS Agreement (as is envisaged by the MoU) whereby they are not required to adopt a specific EU law, but the Scottish or Welsh government wish to adopt it? That would presumably cause no difficulty under the UK-EU SPS agreement but might give rise to domestic law questions under the UK Internal Market Act 2020.

What if Scotland or Wales objects to implementing an EU rule under the SPS agreement? Unless the SPS agreement allows it (for example through an equivalent to the ‘Stormont Brake’), any decision by the devolved institutions not to align would likely be highly problematic. As with Switzerland, the EU would probably be entitled to respond, including by imposing tariffs, and it seems highly unlikely that any such response could be applied other than to GB as a whole. Domestically, such a case might prompt UKG to use its ‘backstop’ powers and would raise UK Internal Market Act considerations.

What if it is UKG which objects, and refuses to implement an EU rule under the agreement in England, while the Scottish and Welsh Governments implement it in Scotland and Wales? Not only would the EU response (e.g. tariffs) likely apply to GB as a whole, but the preference for the Scottish and Welsh Governments to implement the UK’s obligations might be undermined by the UK Internal Market Act.

No doubt the UKG and the devolved administrations are reflecting on these issues. The forthcoming EU alignment Bill, due to be announced in the King’s speech, will likely answer at least some of these questions.

By Catherine Barnard, Senior Fellow, UK in a Changing Europe & Professor of EU Law and Employment Law, University of Cambridge and James Wolffe KC formerly Dean of the Faculty of Advocates (the elected leader of the Scottish bar) 2014-16 and Lord Advocate (the senior Scottish Law Officer) 2016-21.