In her speech to the Scottish Conservatives on March 3, the prime minister, Theresa May, blandly stated that, as “powers and control” return with Brexit, “we must ensure that the right powers sit at the right level to ensure our UK can operate effectively”. Days earlier, Nicola Sturgeon, Scotland’s first minister, railed against UK government plans to use Brexit to fundamentally undermine devolution, ramping up the threat of a second independence referendum. They were both talking about the same issue.
Sturgeon is right that Brexit presents a serious challenge to current devolution settlements, not only in Scotland but also in Wales and Northern Ireland. The UK and devolved governments are currently positioning themselves for a battle. The reason lies in the fundamental architecture of devolution.
How devolution works
In 1998, three devolution acts dealt out responsibility between the UK and the devolved institutions. The cards it deals are policy areas, which are described in broad terms in the devolution legislation. In Wales, for example, the Welsh National Assembly legislates for, and the Welsh government “owns”, agriculture, culture, the environment, health services and planning (among others) in Wales, just as government departments in Westminster do for England.
Contrary to Scottish Tory leader Ruth Davidson’s reported remarks, powers exercised in Brussels do not in the first instance return to “the UK”, if by that is meant the UK government. Rather, what the devolved institutions can do with at least some of the cards they were dealt in 1998 will be massively expanded.
In the EU, for instance, farm subsidies are a matter for the Common Agricultural Policy, and there is currently little for the devolved governments to do other than administer it. But it’s clearly part of “agriculture”, a devolved competence, so after Brexit, it will, legally, fall to the devolved countries. The result is that there could be four completely different farm support systems in the UK, which would affect whether there was a single market within the UK for food.
Questions for the UK’s single market
Up until now, the UK has not had to worry about how the internal single market between the four parts of the country was constituted, because they were all part of a larger single market. The devolution settlement was designed and developed under the wing of the EU-wide single market. So the UK government has never had the need for some sort of cross-cutting power to prevent the more general devolved regulatory cards – such as agriculture, fisheries, and environmental protection – undermining the internal single market in the UK.
That Whitehall is thinking about either some cross-cutting power to “safeguard” the UK’s internal single market, or redefining some of the areas currently controlled by Brussels – for example stripping farm subsidies out of control of agriculture – was evident from May’s speech. The now much-repeated mantra that “no decisions currently taken by Holyrood [the Scottish Parliament] will be taken away” implies that decisions currently taken in Brussels can be “taken away”.
In federal systems, cross-cutting powers often exist. Perhaps the most familiar is the inter-state commerce power, which allows the federal government to “regulate” trade in the US. This commerce power has been an enormously efficient instrument of centralisation.
But, to accomplish its aim of keeping the cross-cutting powers previously exercised by Brussels at the UK level, May’s government will have to legislate to change each of the devolution statutes. If it does, it should need the consent of the devolved legislatures, according to the Sewel convention, a constitutional rule which “normally” requires such consent – although there may be yet another constitutional argument about what it covers. In any case, at least in Scotland and probably Wales, the politics of the devolved administrations means there is unlikely to be consent to such a change.
The UK is not a federal state and May’s government is not merely a higher-tier authority which can monitor disputes between equal, federal substate entities. It may exercise upper-tier type functions over the immigration, national defence and the currency in relation to the devolved nations, but it is also the government for England, the overwhelmingly dominant part of the UK. So when it comes to farm subsidies or environmental protection, the UK government is not merely the upper-tier: it is the government of England, and – the suspicion will be – it will act in England’s interest.
The stage is set for a Brexit-inspired constitutional confrontation between the devolved administrations and the UK government – and it’s the UK government that has to make the first move.