Brexit and the territorial constitution

Following on from a recent debate hosted by the IWA, Wales Governance Centre and All Party Parliamentary Group on Devolution in the House of Lords, we share a series of reflections from leading academics on the implications of the EU Withdrawal Bill on the devolved Nations.

To finish the series, Professor Alan Page explores how Brexit could impact the UK’s territorial constitution

I start from the observation that Brexit has the potential to seriously weaken if not to undermine the UK’s territorial constitution. I say that for two reasons.

First because it will alter the balance of powers and responsibilities between the UK parliament on the one hand and the devolved legislatures on the other, regardless of the outcome of the current dispute over whether EU competences in the devolved areas should be allowed to lie where they fall under the devolution settlements. That was the conclusion I drew from the analysis I did for the Scottish Parliament’s European and External Relations Committee after the referendum, which showed that the majority of EU competences are reserved and will therefore fall to London rather than Edinburgh, Cardiff or Belfast. The Committee’s interest understandably was in the powers that would fall to Scottish Parliament in the absence of any amendment to the Scotland Act but for me what was more striking was the extent of powers that would fall to the UK Parliament. The powers that are the subject of dispute in agriculture, fisheries and the environment for example are only a small proportion of those that will be repatriated.

The second is because of the weakness of UK intergovernmental relations. One of the purposes of a properly functioning system of intergovernmental relations should be to ensure that the interests of the devolved nations are taken into account in the exercise of non-devolved or reserved responsibilities, but that is a role which the current ‘not fit for purpose’ system performs patchily at best.

Allied to which there is a sense of a European Union (Withdrawal) Bill (EUWB) which has been drafted with scant regard to the principles on which the devolution settlements are based.

There is a long list of issues we might discuss. Let me pick out three: Clause 11 and the destination of repatriated competences; the proposed power of UK ministers to legislate in the devolved areas; and the protection of the devolved nations’ interests in relation to reserved matters.

Issue 1: Clause 11 and the destination of repatriated competences

The ‘debate’ over Clause 11, much of which has been conducted behind closed doors, is revealing of a deep-seated lack of trust between the UK Government and the devolved administrations over the repatriation of competences.

On the one side, fear on the part of the UK Government that the devolved administrations and an SNP Government in particular will seize the opportunity provided by the repatriation of competences to make mischief if they possibly can. In an effort to forestall this it is therefore proposing that EU competences should first be repatriated to London before any decision is taken on where they should finally sit.

On the other side, suspicion on the part of the devolved administrations that Clause 11 is not so much about legal certainty as stripping the devolved administrations of the leverage they would otherwise possess when it comes to the negotiation of common frameworks – the need for which, it should not be forgotten, is accepted by both sides to the current dispute.

The devolved administrations also fear that Whitehall departments will find it convenient to hang on to repatriated competences rather than pass them on, quite apart from which the grafting of a conferred powers model onto a reserved powers model will reduce the intelligibility of the settlement1, as well as make more difficult for the devolved administrations to carry out the responsibilities which in the original scheme of the Scotland Act certainly were regarded as theirs.

In any consideration of this issue it is important not to exaggerate the threat to the integrity of the UK single market posed by the repatriation of EU competences in the devolved areas. In particular, sight should not be lost of the part played by the reserved matters listed in Schedule 5 to the Scotland Act, for example, in maintaining the UK single market many of which have a single market rationale as I explained in my paper for the Scottish Parliament’s Europe and External Relations Committee in 2016.  Once allowance is made for the part played by the reserved matters, it seems to me that the UK Government’s ‘guiding principle’ can be more felicitously secured by a combination of the existing reservations and a ‘standstill agreement’ whereby the UK Government and the devolved administrations agree not to introduce, in the Prime Minister’s words, ‘new barriers to living and doing business within our own Union’ while the business of common frameworks and, no less importantly, the necessary revisions to retained EU law are being worked out. As well as preserving the integrity of the UK single market, the combination of reserved matters and a standstill agreement would avoid the undeniably damaging consequences of Clause 11.  

Issue 2: the proposed power of UK ministers to legislate in the devolved areas

Under the EUWB UK ministers will gain far-reaching powers to legislate in the devolved areas, powers which are said to justified by the scale of the challenge represented by Brexit and the shortness of the time within which it may have to be completed.  To fully appreciate how radical a departure this represents from the principles on which the devolution settlement is based we need to recall that there is no subordinate law-making equivalent of the ‘sovereign’ power of the UK Parliament to make laws for Scotland (SA 1998, s 28(7)).

UK ministers accordingly have only limited subordinate law making powers in the devolved areas, the principal one being in respect of the implementation of EU obligations, which may be exercised by UK ministers concurrently with their devolved counterparts (SA 1998, 57(1)). Under the EUWB, however, they will gain powers to correct deficiencies in retained EU law, to ensure continued compliance with the UK’s international obligations, and to implement the withdrawal agreement in devolved as well as reserved areas, i.e. in areas in which ministerial responsibility has been transferred to the Scottish ministers as well as in areas in which it has been retained. It is contrary to the principles on which the devolution settlement is based therefore for these powers to be exercisable, as is currently proposed, subject only to a non-binding requirement of consultation with Scottish ministers – and with no provision for Scottish parliamentary scrutiny of their exercise (below). Instead, as the Scottish and Welsh governments have proposed, they should be exercisable only with the consent of the Scottish and Welsh ministers.

Issue 3: The protection of the devolved nations’ interests in relation to reserved matters

As I have indicated the policy responsibilities that will fall to London following Brexit will far exceed in importance those that will fall to Edinburgh, Cardiff and Belfast. As well as the four freedoms, they include responsibilities in respect of immigration, competition policy, financial assistance to industry, and the negotiation and conclusion of trade agreements with non-EU countries to name only a few. The UK’s intended withdrawal from the EU raises in a new and acute form the question of the protection of the devolved nations’ interests in relation to matters decided at Westminster, an issue which in Scotland’s case is as old as the (Anglo-Scottish) Union itself. The negotiation and conclusion of trade agreements with non-EU countries, in particular, is likely to be a matter keen interest to Scotland and the other devolved nations.

In the 2013 Memorandum of Understanding which governs relations between the UK government and the devolved administrations, the UK Government ‘recognises that the devolved administrations will have an interest in international and European policy making in relation to devolved matters, notably where implementing action by the devolved administrations may be required’, before undertaking to involve them ‘as fully as possible in discussions about the formulation of the UK’s policy position on all EU and international issues which touch on devolved matters (paras 18 and 20).

But whereas JMC machinery has been put in place for involving the devolved administrations in (UK) decision making on EU matters, no comparable machinery exists for involving the devolved administrations in UK decision-making on international matters. That may be because such machinery has not been thought necessary hitherto, notwithstanding the breach of the Concordat on International Relations revealed by the 2001 Labour Government’s ‘deal in the desert’, but with the UK’s intended withdrawal from the EU the lack of such machinery, and with it the overhaul of the ‘not fit for purpose’ system of intergovernmental relations, will need to be addressed as matters of urgency.


1  One fears that only lawyers and Civil Servants, but by no means all of them, will be able to work out or give reliable advice on the full meaning of the affirmations as qualified by the negations. Beyond doubt, this complexity and difficulty of comprehension is a defect of the Act. It infringes the principle of intelligibility of law, a principle most to be prized in constitutional enactments’: Neil MacCormick quoted in Page, Constitutional Law of Scotland (W Green 2015) p 115, fn 14. MacCormick was writing about the Scotland Act 1978, but the comment would apply equally to the Scotland Act 1998, as it is proposed to be amended by the EU (Withdrawal) Bill.


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Professor Alan Page is a Professor of Public Law at the University of Dundee

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