What happens to powers being ‘repatriated’ from the EU after Brexit?
When Brexit occurs, subject to the terms of our future relationship with the European Union (EU), most of the powers exercised at the EU level will be ‘repatriated’ to the UK.
Many of these powers, for instance those relating to immigration, trade and competition policy, will become the sole preserve of Westminster.
In other areas, powers exercised at present by EU institutions will be devolved to Scotland, Wales and Northern Ireland. The UK government has stated that it expects Brexit to lead to ‘a significant increase in the decision making power of each devolved administration’.
However, the UK Government also argues that there will be a need for new ‘common frameworks’ between the UK and devolved governments to ensure policy consistency or coordination in some areas.
What does the Government mean by ‘common frameworks’?
The legislation establishing the institutions in Edinburgh, Cardiff and Belfast specifies which policy areas are devolved.
In Scotland and Northern Ireland, this is done by listing the areas ‘reserved’ to Westminster.
In Wales, the legislation lists which areas are ‘conferred’ to Cardiff, but Wales will switch to the ‘reserved powers’ model in 2018.
In all cases, the intention is to establish a clear divide between what is devolved and what is not.
However, the devolved institutions are legally bound to comply with EU law. As a result, in some nominally devolved areas – such as environmental regulation, agriculture, state aid for industry, public procurement and aspects of justice, transport and energy – the policy autonomy of the devolved institutions is significantly constrained in practice.
When the UK leaves the EU, if no change is made other than to remove the statutory requirement to comply with EU law, these policy areas would fall completely under devolved control.
This would allow policy differentiation within the UK in areas where EU law has previously provided a common legal framework.
The UK Government therefore argues that some new legislation will be required to ‘[recreate] in UK law the common frameworks currently provided by EU law’.
In what areas might common frameworks be created?
According to a document released by the Scottish Government, the UK Government has identified a total of 111 policy areas where ‘powers returning from the EU that intersect with the devolution settlement in Scotland’.
Based on our analysis, the departments with the greatest number of policy areas falling into this category are: 28 for the Department for Environment, Food & Rural Affairs (Defra), 25 for the Home Office, 15 for the Department for Business, Energy and Industrial Strategy (BEIS), and 13 for the Ministry of Justice (MoJ).
For Wales, First Secretary of State Damian Green stated that there are 64 such areas. A leaked list of these areas was published in the Western Mail, and we use this as the source for our analysis below (see chart below). The Welsh list is significantly shorter because policing, justice and certain energy and transport policy areas are not devolved to Cardiff.
There has been no public statement about Northern Ireland. However, we understand that the list for Northern Ireland includes all 111 areas affecting Scotland, plus around 30 additional areas devolved only to Stormont, for instance relating to energy policy and cross-border cooperation with the Republic of Ireland.
New frameworks will not necessarily be required in all these areas. In some cases, full control is expected to be transferred to the devolved institutions, allowing policy divergence between the nations.
The UK and devolved governments are now understood to be discussing the principles for and definition of common frameworks. Once agreement is reached on these points, then detailed work can commence on the shape of specific common frameworks.
What criteria will determine where common frameworks are needed?
The UK Government has set out four reasons for why common frameworks might be needed.
The first is to ensure ‘that the effective functioning of the UK single market is maintained’ and that ‘no new barriers to living and doing business within our own Union are created as we leave the EU’. This could imply the need for binding frameworks to prevent regulatory differences emerging in many areas from public procurement, rail franchising and animal welfare to the management of radioactive waste.
Second, the Government is concerned that regulatory divergence might make it harder for the UK to strike comprehensive trade deals, for instance if the devolved nations created more generous schemes for subsidising farmers or supporting local industry. In its response to a recent parliamentary committee inquiry, the Government stated that ‘new frameworks may be needed … to ensure… [that] we are able to strike trade deals with third countries’.
A third rationale for common frameworks is to ‘provide the certainty needed to agree and meet international obligations’ including in areas relating to devolved policy competences. This might apply, for instance, if the UK continues to cooperate with the EU in tackling cross-border crime or in allowing each other’s citizens access to healthcare when abroad.
Fourth, certain policy issues inherently do not respect national boundaries – whether that be natural resources like fisheries, or environmental externalities such as air pollution. The Secretary of State for Exiting the EU has therefore argued that common frameworks could also be required ‘to manage shared resources such as the sea, rivers and the air’.
What do the devolved governments say about common frameworks?
The Scottish and Welsh Governments have both agreed that some ‘common frameworks’ will be required once the UK leaves the EU.
The Welsh Government’s post-referendum white paper, Securing Wales’ Future, recognised that ‘in some cases, in the absence of EU frameworks which provide an element of consistency across the UK internal market, it will be essential to develop new UK-wide frameworks’.
Similarly, the Scottish Government has signalled its ‘clear acceptance that there will be the need for some common approaches across the UK… [when it] withdraws from the EU’.
Northern Ireland – still without an executive – is unable to set out an official position, although the Democratic Unionist Party (DUP) supports the UK Government position as part of the Conservative-DUP deal at Westminster.
But while the UK and devolved governments agree that some areas will require new frameworks, there is no consensus on which areas these should apply. More fundamentally, they disagree about how common frameworks should be established.
Both Wales and Scotland argue that common frameworks are ‘a matter for negotiation and agreement between the governments concerned, not for imposition from Westminster’, and that they need to ‘be based on common consent’.
What form might the new common frameworks take?
In principle there are at least four ways that common policy frameworks could be established. In many cases, a combination of these approaches may be needed.
First, in some cases the UK might agree to continue to comply with EU law as part of a new ‘deep and special partnership’. For instance, the UK might maintain EU-compliant state aid rules or remain within some arrangements for justice cooperation. In such cases, additional powers would not be devolved, but the UK and devolved governments will need to cooperate on implementation nonetheless.
Second, in areas where the UK is definitively ‘taking back control’, but where regulatory consistency is deemed crucial, new frameworks could be set up by legislation at Westminster for the entire UK. This might apply to management of fisheries or subsidies for agriculture. Since these policy areas are already devolved in principle, the ‘Sewel Convention’ would apply, meaning that the consent of the devolved bodies should be sought.
Third, there may be areas where coordination is required, but a binding legal framework is seen as unnecessary or undesirable. In this case, powers might be devolved in full (as the Scottish and Welsh governments argue should occur) but with agreement about how the different governments will work together, perhaps to share best practice and data or to agree upon minimum standards in areas such as air or water pollution.
Fourth, the UK and devolved governments could create new intergovernmental structures to take binding decisions for the whole UK. The Welsh Government has proposed a new UK Council of Ministers to oversee issues such as agriculture-related aspects of trade negotiations. The Welsh propose that the UK Government should not be able to override the opposition of all three devolved governments in the event of disagreement.
What does the EU (Withdrawal) Bill say about common frameworks?
The EU (Withdrawal) Bill does not specifically mention ‘common frameworks’. But as recent Institute for Government analysis has shown, the bill will prevent the devolved bodies from modifying ‘retained EU law’ – the body of EU law being imported into the domestic legal system to prevent a regulatory black hole after exit day.
The immediate effect will be that Westminster will have the sole power to legislate to replace EU frameworks in all the areas mentioned above. However, the bill also contains provision for additional powers to be devolved, at the discretion of UK ministers. This might apply in areas where common frameworks are either unnecessary or where looser intergovernmental coordination is deemed sufficient.
The Welsh and Scottish governments have proposed amendments to the bill that would mean that the full list of policy areas shown in the chart above would fall fully within devolved competence upon Brexit. Frameworks would then be negotiated between the governments – and if necessary legislation could be passed at Westminster, with devolved consent, to give the necessary legal underpinning to the new arrangements.
This disagreement means that the Welsh and Scottish governments are set to withhold legislative consent for the EU Withdrawal Bill in its current form. They have accused the UK Government of attempting a ‘power grab’.
The UK Parliament therefore faces a choice between making concessions to satisfy the devolved governments and pushing through the bill without consent.
The latter option would be an unprecedented breach of the Sewel Convention, but would probably nonetheless be considered legal. The Supreme Court declared in the Miller judgment in January 2017 that since Sewel is just a convention ‘the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law’.
How will the UK and devolved governments resolve their differences?
In October 2016, in line with Institute for Government recommendations, the UK and devolved governments created a new Joint Ministerial Committee (European Negotiations) (JMC (EN)), at which ministers from all four governments would meet to ‘seek to agree a UK approach to, and objectives for, Article 50 negotiations’.
However, the devolved governments have criticised how this body has worked in practice. In June, the Scottish and Welsh Governments issued a statement criticising the JMC (EN), calling for more regular meetings, and for the committee to become a forum for ‘meaningful discussions of key issues, aimed at reaching agreement rather than an opportunity to rehearse well-established public positions’, as they had found it to operate so far.
Having agreed to meet monthly, the JMC (EN) met only four times and has not convened since February 2017. It is scheduled to meet again on Monday 16 October.
There have also been no meetings since January 2017 of the Joint Ministerial Committee in its plenary format at which the Prime Minister, other senior UK ministers and devolved heads of government meet. Instead, Theresa May has recently committed to bilateral meetings with both the Scottish and Welsh First Ministers.
As our chart shows, this stop-start approach to using the formal intergovernmental machinery to resolve differences and reach common positions reflects a pattern going back to the start of devolution in 1999.
The JMC (Plenary) did not meet for over five years from 2002. The JMC (Domestic Policy) was created in 2008 with the vague purpose of enabling ‘ministers to discuss a range of issues’, particularly those that ‘straddle both devolved and non-devolved areas’, but it ceased to operate in 2014.
Only the JMC (Europe) met regularly for most of the post-1999 period. This body brings together UK and devolved ministers in advance of European Council meetings to discuss the UK position in EU negotiations.
As our chart shows, it too has met more infrequently in recent years. Like all the JMC bodies, it meets only when the UK Government decides. The irregularity of these meetings is therefore an indicator of the weak position of the devolved governments when it comes to decisions about the UK-EU relationship.
