It’s well known that Scots voted by a clear majority for the UK to remain within the EU. That Scotland faced the prospect of “being taken out of the EU against our will” was, according to the First Minister the morning after the vote, both “democratically unacceptable” and a “significant and a material change of the circumstances in which Scotland voted against independence in 2014.” The independence issue has been bubbling below the surface ever since, but the challenges Brexit poses for Scottish devolution have presented the more pressing concerns.
Powers bonanza or power grab?
The Secretary of State for Scotland, among others, has claimed that Brexit will enhance significantly the powers of the Scottish Parliament. The Scottish Government accused its UK counterpart of using Brexit to carry out a raid on the powers of the devolved institutions.
These competing perspectives emerged during the passage of the EU (Withdrawal) legislation. Both the Scottish Government and the Welsh Government objected to the restrictions it placed on the devolved institutions’ authority to amend repatriated competences (‘retained EU law’) in areas like fishing, agriculture and the environment that fall within their remit. Working together, the two governments used ‘soft power’ to force changes to the legislation.
However, the Act still gives the UK Government the legal authority to introduce regulations (known as ‘section 12 regulations’) that would ‘freeze’ devolved powers to allow for the development of UK common frameworks. Despite the UK Government’s assurances to seek agreement, the legislation lends it the authority to proceed without it, even in the face of an explicit refusal of consent. This represented, in the words of Mike Russell, then Minister for UK Negotiations on Scotland’s Place in Europe, an ‘unprecedented, unequal and unacceptable new legislative constraint’. By a clear majority, excluding only the Conservatives, the Scottish Parliament refused consent for the Withdrawal legislation. The legislation was passed anyway.
The Scottish Parliament’s alternative ‘continuity’ legislation was referred by the UK Government to the Supreme Court. The Court ruled that the bill was largely within the powers of the Scottish Parliament at the time that it was passed, but much of it was rendered beyond its powers by the protected status given to the EU (Withdrawal) Act.
The entire episode has undermined one of the founding principles of devolution: that the UK parliament will not normally legislate in areas of devolved competence or change devolved powers without the consent of the devolved institutions.
Towards Collaborative Governance?
There is no doubt that Brexit is placing strains on the relationship between the Scottish and UK Governments. But beneath the public spats, there is a lot of cooperation.
So far, no section 12 regulations have been introduced to ‘freeze’ devolved powers, and none are anticipated in the foreseeable future. Civil servants from each of the UK’s administrations have been working intensively to agree where new UK common frameworks might be needed to replace EU frameworks, and how these might be governed. These negotiations are founded on agreed principles, including ensuring ‘the functioning of the UK internal market’ and respect for the devolution settlements and democratic accountability of the devolved legislatures. These principles might be difficult to reconcile once proposals move from discussions among officials to critical decisions between ministers.
Whatever form it eventually takes, Brexit adds new complexities to the UK’s system of multi-level government. Rather than conceiving it (wrongly, in my view) as a system which creates clear distinctions between the powers of each level of government, Brexit creates more overlaps and interconnections, opening up space for shared powers. Each of the administrations is engaged in a joint review of the principles and processes of intergovernmental relations, which many commentators, my colleagues and I included
, have regarded as not fit for purpose in a post-Brexit landscape.
If reforms are to be effective, rebuild trust and be regarded as legitimate by all governments, collaboration and mutual consent will need to go hand in hand.