To Devolve or Not to Devolve

Michael Keating considers the EU Withdrawal bill and explains that it has sizable implications for the future of devolution and the UK constitution more generally. 
One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanized. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies. 
After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.
The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh Government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modelled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK Government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers .
The proposals in the EU Withdrawal bill are at the other end of the spectrum from the Welsh suggestion. A category of ‘retained EU law’ is created and it is proposed that all such EU law revert to Westminster. Ministers have suggested that, at a later stage, some powers may again be devolved. In order to achieve this, the Withdrawal bill amends the devolution statutes for Scotland, Wales and Northern Ireland. 
This is a development of great constitutional import as the first significant rolling back of devolution since the process started twenty years ago. Under the Sewel Convention, such changes normally require the agreement of the devolved legislatures themselves. This was reaffirmed after the Scottish independence referendum as the unionist parties strove to assure the public that devolved powers would not be undermined. It does appear that Westminster will seek to gain such approval through Legislative Consent Motions. This tests the Sewel Convention to its limits. The Scottish and Welsh governments have indicated that they will not recommend consent, meaning that the motions would be voted down in the Scottish Parliament and the National Assembly for Wales. 
There is no doubt that, as a strict matter of law, Westminster could go ahead and take back the powers anyway. The UK Supreme Court, in the Miller case, on the role of Parliament in Brexit, insisted that the Sewel Convention is not legally enforceable. In fact, we knew this already. The more relevant question is the status of Sewel in our unwritten constitution and in underpinning the institutional balance of devolution. Much of the UK constitution is based on conventions. These are not, as the Supreme Court suggested, mere matters of political convenience but are part of the rules of the political game. From this perspective, the conventions around legislative consent are the equivalent, in our unwritten constitution, of those provisions that elsewhere prevent central government changing the rules of the game unilaterally. They are what distinguishes devolved national legislatures, established by referendum, from mere local authorities and give the UK constitution a federal spirit. From this perspective, the fact that it might be complicated and difficult to leave powers at the devolved level during Brexit, or that the devolved legislatures are already restricted by EU laws which the UK will merely replace, is irrelevant. 
There has been no indication of what powers might, at a later stage, be transferred back to Scotland, Wales and Northern Ireland. The extent of common provisions needed across the UK will not be clear until the UK’s future trading relationship with the EU has been settled. Future free trade agreements with non-EU countries will also impinge on devolved matters. It is likely, therefore, that the UK Government will retain the key powers indefinitely and devolve only cautiously. It seems unlikely that the UK Government will transfer them all back or that the Welsh proposal for joint policymaking will be adopted. The administrative responsibility, however, will remain with the devolved administrations as they have the machinery in place. This introduces a principle that has, so far, been applied sparingly in the UK, of administrative devolution without legislative powers. It moves us closer to a hierarchical model of devolution, in which the broad principles set in London and the details filled in across the nations. 

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Michael Keating's picture
post by Michael Keating
University of Aberdeen
17th July 2017
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