Brexit Evolves and Devolves

Two years and counting, just thinking of Brexit now brings on a headache. Many doubts still remain about the potential of an approval of the withdrawal agreement signed by Boris Johnson and the EU, and not only because of the consent withheld thus far by Westminster. The ongoing process of approval of the EU (Withdrawal Agreement) Bill sheds new light on the devolved institutions and their relationship with the center. So far, it seems that devolution has not been considered a priority in the Brexit process: there was no mention of it in Theresa May’s withdrawal agreement, nor Boris Johnson’s.

This is notwithstanding the fact that the withdrawal agreement could have a profound impact on the devolved nations and particularly on areas of devolved competence such as agriculture, environment, fishing. As time goes by, the Prime Minister’s commitment to all four nations of the UK becomes more and more unavoidable. Cooperation with the devolved administrations could prevent further fracturing of the Union.

Just consider the fact that the UK Government is required to seek legislative consent for the EU (Withdrawal Agreement) Bill from the Scottish Parliament and the National Assembly for Wales. This is required by a constitutional convention, the Sewel Convention, so that Westminster cannot normally legislate in areas of devolved competence, or alter the competences of the devolved institutions, without their consent. However, despite being formally written in the Scotland Act 2016 and Wales Act 2017 this principle has not been evaluated as a legal requirement, as was recently confirmed by the Supreme Court in the Miller case. In its decision, the Court clarified that the inclusion in a devolution act of a principle set out in a convention did not alter its lack of legal effect.

However, even if not considered as binding in strict legal terms, this rule of the devolved consent is de facto politically binding.

This means the Scottish Parliament and the National Assembly for Wales should have a role in scrutinizing and consenting to the EU (Withdrawal Agreement) Bill.
Considering the opposition of Scottish National Party Government towards Brexit there is little prospect that the Scottish Parliament and the National Assembly for Wales will grant their consent.

Recently the Scottish Government has explicitly clarified its position recommending that the Scottish Parliament should not consent to any part of the bill, and should indicate its opposition to the UK’s withdrawal from the EU and to the Withdrawal Agreement. Also the National Assembly for Wales has already declared that it would not consent to the Bill as currently drafted.

This means that, if the legislation is going to complete its passage through Westminster, the UK Parliament will need to press on without them. Such a breach of the Sewel Convention, following the passage of the EU Withdrawal Act 2018 without the Scottish Parliament last year, would inevitably produce a further flashpoint between the UK’s central government and its devolved counterparts.

Is the British government right to underestimate the role of the devolved institutions? If not from Westminster, troubles for Boris Johnson could come from the peripheries of the Union. There is no devolution veto over Westminster legislation, the Sewel convention is not a legal requirement, but in the past it has been critical to the successful functioning of devolution. If not implemented in this case and for the second time during the Brexit process, the potential political consequences could be devastating. The Union itself looks more fragile than ever, with the most obvious candidate for secession, Scotland, having a second independence referendum always in its pocket.

A headache is nothing, the best is yet to come.

Sara Parolari is Senior Researcher at the Institute for Comparative Federalism of Eurac Research. She got her PhD in Comparative and European Legal Studies at the Faculty of Law, University of Trento (Italy) in 2007. Her main research interests are Italian and European regional law, Regional Law of Trentino-Alto-Adige/South Tyrol, and the British legal system. In her free time she manages the free time of her three kids…