The Withdrawal Agreement and Devolution

Disagreements between the UK, Welsh and Scottish Governments are about more than inter-party rivalry, says Nicola McEwen, they reflect a very real disagreement about how policy can be made - and by whom. 
 
It is statement of the obvious to say that the fate of the draft Withdrawal Agreement is in some doubt. In addition to opposition from pro-Brexit (and some pro-Remain) Conservatives, the opposition parties appear united in their resolve to vote against the agreement when it comes to Parliament. 
 
For a while, it looked like they may be joined by the 13-strong bloc of Scottish Conservatives. All of them – including the Secretary of State for Scotland, David Mundell – had signed a letter sent to the Prime Minister on Wednesday, warning: 
 
“…we could not support an agreement with the EU that would prevent the UK from independently negotiating access and quota shares … access and quota shares cannot be included in the Future Economic Partnership”. 
 
Despite the leadership’s pro-Remain position in the referendum, the Scottish Conservatives appear to have gone full Brexit. But having marched the troops up to the top of the hill, they promptly marched back down again, seemingly reassured by the PM that the UK would be leaving the Common Fisheries Policy to become an independent coastal state in 2020, with sovereignty over fishing rights in UK territorial waters. But fishing will feature in the trade negotiations to come. The outline of the Political Declaration on the future UK-EU relationship says as much:
 
“Within the context of the overall economic partnership, establishment of a new fisheries agreement on… access to waters and quota shares, to be in place in time to be used for determining fishing opportunities for the first year after the transition period.” (emphasis added). 
 
The Withdrawal Agreement has met with a sharp response from within the devolved governments. The Scottish First Minister, Nicola Sturgeon, described the deal as the ‘worst of all possible worlds’ by taking Scotland out of the EU single market while leaving Northern Ireland effectively in it. The Welsh First Minister, Carwyn Jones, complained about a lack of consultation with the devolved governments on the details of the Agreement, despite it impinging on devolved competence. Building on the bi-partisan approach they have forged during the Brexit process, the two leaders wrote jointly to the Prime Minister complaining of a lack of meaningful engagement with the devolved governments. They called for an urgent meeting of the Joint Ministerial Committee to discussed the detail of the Agreement and the political declaration before it is finalised. 
 
There is good reason for the two governments to want a say. Commitments made in the Withdrawal Agreement will have both direct and indirect effects for the responsibilities of the devolved governments in Scotland and Wales. The Protocol on Ireland/Northern Ireland – the backstop to be introduced in the absence of a negotiated deal on the future relationship – includes a single customs area for the UK and the EU, but effectively embeds Northern Ireland within the EU single market, an outcome the Scottish Government has argued puts it at a competitive disadvantage. The backstop agreement also commits the UK to maintain minimum common standards ‘with the aim of ensuring the proper functioning of the single customs territory’, including in large swathes of environmental policies, employment policies and state aid, with independent oversight and enforcement. Many of the areas noted in the Agreement fall within devolved competence, yet neither the Agreement nor the political declaration make even passing reference to Scotland or Wales.  
 
It is not just the lack of trust or party allegiance that inhibits meaningful intergovernmental negotiation. At the heart of these intergovernmental tensions lies a divergent view on the nature of the Union. The First Ministers’ letter to the PM notes: “we continue to make the point at every opportunity that the UK Government cannot agree the UK position on the Withdrawal Agreement or the future relationship with the EU27 without the input of the devolved administrations.” This reflects their firm view that, when it comes to EU relations, there is a clear difference between the UK position and the UK Government position. But this is not the prevailing view within the UK Government, who regard themselves as solely responsible for both EU relations – which are reserved in the devolution settlements – and matters that affect the UK as a whole. 
 
Such a strict distinction between reserved and devolved competence has never made sense in the day to day world of public policy-making, and the interdependence between the two governmental spheres is set to increase once the UK leaves the EU. The continued lack of shared understanding about the status and role of the devolved governments does not bode well for the ongoing efforts to reform the UK’s system of territorial governance in preparation for life outside the EU.
 

Comments policy

All comments posted on the site via Disqus are automatically published. Additionally comments are sent to moderators for checking and removal if necessary. We encourage open debate and real time commenting on the website. The Centre on Constitutional Change cannot be held responsible for any content posted by users. Any complaints about comments on the site should be sent to info@centreonconstitutionalchange.ac.uk

Nicola McEwen's picture
post by Nicola McEwen
University of Edinburgh
19th November 2018
Filed under:

Latest blogs

  • 12th February 2019

    CCC Fellow Professor Daniel Wincott of Cardiff University examines how Brexit processes have already reshaped territorial politics in the UK and changed its territorial constitution.

  • 7th February 2019

    The future of agriculture policy across the United Kingdom after Brexit is uncertain and risky, according to a new paper by Professor Michael Keating of the Centre on Constitutional Change. Reforms of the EU’s Common Agricultural Policy over recent years have shifted the emphasis from farming to the broader concept of rural policy. As member states have gained more discretion in applying policy, the nations of the UK have also diverged, according to local conditions and preferences.

  • 4th February 2019

    In our latest report for the "Repatriation of Competences: Implications for Devolution" project, Professor Nicola McEwen and Dr Alexandra Remond examine how, in the longer term, Brexit poses significant risks for the climate and energy ambitions of the devolved nations. These include the loss of European Structural and Investment Funds targeted at climate and low carbon energy policies, from which the devolved territories have benefited disproportionately. European Investment Bank loan funding, which has financed high risk renewables projects, especially in Scotland, may also no longer be as accessible, while future access to research and innovation funding remains uncertain. The removal of the EU policy framework, which has incentivised the low carbon ambitions of the devolved nations may also result in lost opportunities.

  • 1st February 2019

    The outcome of the various Commons votes this week left certain only that the Government would either secure an amended deal and put it to a meaningful vote on Wednesday 13 February, or in the overwhelmingly likely absence of this make a further statement that day and table another amendable motion for the following day, the Groundhog Day that may lead to a ‘St Valentine’s Day Massacre’ for one side or the other. Richard Parry assesses the further two-week pause in parliamentary action on Brexit

  • 24th January 2019

    Concerns about the implications of the Irish backstop for the integrity of the domestic Union contributed significantly to the scale of the 118-strong backbench rebellion that led to Theresa May’s Withdrawal Agreement being defeated last week, by the extraordinary margin of 432 to 202. What do the arguments made during the Commons debate tell us about the nature of the ‘unionism’ that prevails in the contemporary Conservative Party?

Read More Posts