Westminster and Whitehall

The UK Parliament has the power to pass law in all policy areas for the whole UK. Since devolution, however, it normally legislates in devolved areas only with the agreement of the devolved institutions. This has happened on more than 200 occasions since 1999. But Brexit has created new tensions in the UK–devolved relationship. The European Union (EU) (Withdrawal) Act 2018 was the first bill ever passed after the Scottish Parliament voted to deny consent and there are now disagreements over agriculture, fisheries and trade bills. UK and devolved ministers have met more frequently than ever to try to resolve their differences, but there are big challenges to overcome.

Devolution to Scotland, Wales and Northern Ireland was implemented in the late 1990s without much consideration of how such a radical reform would affect the UK Parliament and Government. Devolution marked a major change in the governance of the devolved nations, but Westminster and Whitehall did not initially need to adapt very much to the new context.

First, devolution did not change the constitutional principle of parliamentary sovereignty. Westminster transferred certain powers to Edinburgh, Cardiff and Belfast, but retained the ability to legislate in all areas, devolved or not. Second, devolution retained the Barnett formula for distributing money to the three nations. Third, the guiding approach to devolution has been to draw a clear division between what is devolved and what is ‘reserved’ to Westminster. Few functions are formally shared between central and devolved governments. As a result, the UK Government did not create systems or processes for joint working with the devolved administrations.

In practice, however, devolution has had several significant effects on Westminster and Whitehall. As discussed in the preceding chapter, the arrangements for funding devolution have evolved significantly since 1999. The UK Parliament has also had to develop new mechanisms for dealing with legislation for the different nations of the UK, and the UK Government has had to manage tensions and disputes with the devolved administrations, not least over Brexit. In this chapter, we explore some of the ways in which Westminster and Whitehall have had to adapt to devolution, and consider the state of the relationship between central and devolved governments three years after the EU referendum.

Westminster now very rarely passes legislation solely for the devolved nations

Primary legislation solely for Scotland, Wales and Northern Ireland, 1979 to 2018

Before devolution, the UK Parliament was the UK’s sole law-making body, but in certain areas law and policy differed across the UK. Westminster therefore quite often passed bills applying to just one part of the UK, including in policy areas that are now the responsibility of the devolved institutions. Since the establishment of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly, the UK Parliament has passed legislation that is specifically for the devolved nations far less often. When Westminster has legislated for the other nations, this has mainly been in reserved (that is, non-devolved) areas, for instance to transfer additional powers to the devolved bodies. But the pattern is different for each of the nations, reflecting institutional differences between Scotland, Wales and Northern Ireland.

Scotland has always had its own legal system, and other public services such as schools, universities, the NHS and the police were managed separately from their English equivalents long before 1999. Reforms to Scottish law and public policy before devolution were often enacted through Scotland-specific legislation at Westminster. However, the former chair of the Scottish Law Commission, the Hon. Lord Pentland, has recalled that “legislation to reform Scots law did not have a high political priority and sometimes struggled to find parliamentary time at Westminster”.[1] This was a practical argument made in favour of devolution in the first place: that the establishment of the Scottish Parliament would enable necessary reforms to Scottish law to be made with more urgency (as well as better scrutiny).

The data bears out this idea that there was greater pent-up demand for Scottish legislation than the UK Parliament had been able to supply. In the 20 years before devolution, Westminster passed an average of five Acts of Parliament a year specifically for Scotland. By contrast, in the 20 years since devolution, the Scottish Parliament has passed an average of 15 Acts a year. Meanwhile, just seven Scotland-only Acts in total have been passed at Westminster, all in reserved areas, and including two that further expanded the powers of the Scottish Parliament.

Wales does not have its own justice system and it has been part of a unified England- and-Wales legal jurisdiction since the time of Henry VIII. As a result, Westminster passed separate laws just for Wales far more rarely than for Scotland in the era before devolution. This happened just 10 times between 1979 and 1999, including the legislation that established the Welsh Assembly in Cardiff. Initially, however, the new Welsh Assembly could not pass its own primary legislation, and instead had to negotiate with the UK Government to pass laws on its behalf. Consequently, the number of Wales-only Acts passed at Westminster actually increased slightly after 1999, with eight passed in the first eight years of devolution.

In 2007, the UK Parliament granted the Welsh Assembly the power to make law in narrowly defined areas, by means of a device called the ‘Legislative Competence Order’, of which Westminster passed 15 in four years. Since 2011, the Assembly has been able to pass its own Acts across the full range of devolved functions, without Westminster authorisation, and it has done so 37 times. The only Wales-specific laws passed at Westminster since then have been two further Acts extending the powers of the Assembly in Cardiff – constitutional statutes that only the UK Parliament can pass.

Northern Ireland, like Scotland, has its own legal system, and many public services and the social security system were administered separately long before 1999. Northern Ireland had its own Parliament and Government from 1922 until 1972, until the UK Government imposed direct rule in response to the start of the Troubles. The main way in which Westminster legislated for Northern Ireland after 1972 was through ‘Orders in Council’ – legislative devices that can be passed more easily and quickly than bills. Academic research has found that, on average, each Order in Council took just 90 minutes to get through the House of Commons, creating “a huge democratic deficit”.[2] From 1979 to 1999, a total of 415 Orders were passed across a wide range of areas of law and domestic policy. The UK Parliament also passed 24 Acts for Northern Ireland, many about the peace process and security concerns.

Since the Northern Ireland Assembly was created, the UK Parliament has continued to legislate specifically for Northern Ireland, occasionally while devolution has been in operation, and more frequently when it has not. During the period of direct rule by UK ministers from 2002 to 2007, which was imposed when power-sharing between unionists and nationalists collapsed after allegations of IRA spies operating within the Northern Ireland Assembly,[3] Parliament passed 15 Acts and 104 Orders in Council for Northern Ireland. Power-sharing then functioned for nearly a decade. During this period, Westminster passed a further six Acts for Northern Ireland. All but one related to non-devolved matters, such as electoral administration, or transferred further powers (including over justice, policing and corporation tax) to Belfast. The exception was in 2015, when Westminster legislated in the devolved area of welfare reform in Northern Ireland. This bill was passed with the agreement of the parties in Belfast, who had been unable to agree on legislation of their own, as discussed in Chapter 2 of this report.

Devolution again collapsed in early 2017, and between January 2017 and March 2019 nine further Acts have been passed for Northern Ireland, including to authorise budgets for Northern Ireland and to set local taxation rates. However, despite the two-year hiatus in devolved government, the UK Government has not imposed formal direct rule from Westminster. Consequently, there has not been a resumption of the use of the Order in Council process to pass domestic public policy reforms. Instead, via the passage of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, senior civil servants in Belfast have been authorised to exercise powers that would normally require ministerial approval so long as they are “satisfied that it is in the public interest to exercise the function”.[4] This unusual reform has been described as “of a highly questionable nature, from the perspective both of high constitutional principle and practical efficacy”.[5] Like all recent Northern Ireland legislation, this Act was rushed through Parliament under fast-track procedures, leading to criticism from the House of Lords Constitution Committee and others about the insufficient time for scrutiny.[6]

Overall, devolution appears to have lightened the legislative load on the UK Parliament, while probably increasing the quantity of legislation overall. On the rare occasions that specific Acts have been passed at Westminster for one of the devolved nations, these have almost always been on constitutional or other reserved matters. But as the sovereign parliament, Westminster still has the power to legislate for all parts of the UK, even in devolved policy areas. This normally happens with the consent of the devolved administrations. On other matters, where there is no need for or no agreement on UK-wide legislation, the UK Parliament often legislates solely for England.

 

English MPs can now veto England-only laws – but the impact has been minimal

Bills subject to the English votes for English laws process by sponsoring department, 2015 to 2019

The establishment of the three devolved legislatures in 1999 did not change the powers of the UK Parliament. But in policy areas that had been devolved, such as health and education, Westminster found itself legislating for England only. This gave rise to the infamous ‘West Lothian question’, which asks why non-English Members of Parliament (MPs) can vote on English legislation on issues where English MPs can no longer vote on legislation for the other parts of the UK. During the Blair Government, the UK Parliament controversially passed legislation to introduce foundation hospitals in the English National Health Service (NHS) and to introduce top-up fees for English university students, in 2003 and 2004 respectively, despite the opposition of a majority of English MPs.[7]

In 2015, the Cameron Government reformed the legislative process to give English MPs a veto over any laws (or parts of laws) that apply only in England. In areas such as policing and justice, where laws apply to England and Wales, English and Welsh MPs together were granted this veto power. These procedures – known as ‘English Votes for English Laws’ (EVEL) – have been used during the legislative process for 35 bills since 2015. The greatest share has been bills sponsored by the Ministry of Housing, Communities and Local Government, as the responsibilities of this department are almost wholly devolved to Scotland, Wales and Northern Ireland. Four bills each on education and justice have also passed through the EVEL process, as have clauses of four Treasury-sponsored bills, including votes on income tax rates that no longer apply in Scotland.

The EVEL process is a rare example of a procedural change that the UK Parliament has made as a result of devolution. It was controversial at the time of its introduction, with all non-Conservative MPs either abstaining or voting against it. But EVEL has not made a significant difference in practice. There have been no cases of English MPs voting against a law that the House of Commons as a whole has voted for, and the process – for now – is a barely noticed technicality. An academic study found that proceedings on English parts of bills, which take place in a new English ‘Legislative Grand Committee’, lasted an average of around two minutes.[8] Consequently, the authors concluded that EVEL has “failed to provide meaningful English representation at Westminster—particularly in relation to supplying England, and its MPs, with an enhanced ‘voice’”.[9]

However, if the parliamentary arithmetic were different, for instance if a future Labour-led government had a UK-wide majority but no majority in England, then the EVEL process could become more significant, since English opposition MPs would hold a veto power over legislation in important areas of domestic public policy.

 

Westminster still legislates in devolved areas – normally with consent

Number of Acts of the UK Parliament subject to legislative consent motions at the devolved level, 1999 to March 2019

Another adaption the UK Parliament and Government have made in response to devolution is to commit to the Sewel Convention. This non-binding political agreement (also known as the Legislative Consent Convention) has become a core pillar of the relationship between Westminster and the devolved administrations over the first two decades of devolution. It was first expressed by Scottish Office minister Lord Sewel during the passage of the legislation creating the Scottish Parliament in 1998. His precise formulation was that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.[10] The convention was taken to extend to the Northern Ireland Assembly and to the Welsh Assembly after it acquired primary legislative powers in 2007. The same convention has also been taken to apply when Westminster legislates to amend the terms of devolution.

The normal process followed in cases where legislation at Westminster falls within the scope of the convention is that there is consultation between the UK and devolved administrations before publication of the legislation. When the bill is introduced, devolved ministers set out their view of whether and why consent should be given in a ‘legislative consent memorandum’. In some cases, this leads to amendments being made in the UK Parliament to deal with devolved concerns. The devolved legislature then votes on a ‘legislative consent motion’, which can either grant or decline to grant consent to the bill. The UK Parliament has the power to ignore the denial of devolved consent and to legislate regardless, but has very rarely taken this option.

The Sewel Convention has been used frequently across a wide range of areas. In our analysis we found that 202 Acts of Parliament (including 17 private members' bills) over the first two decades of devolution (until the end of March 2019) had been subject to consent motions in at least one of the three devolved legislatures. This includes 155 bills in the case of Scotland, 61 for Wales and 65 for Northern Ireland (a figure that would have been significantly higher had it not been for the regular collapses of devolution in Northern Ireland). In 60 cases, consent had been voted on in more than one of the devolved legislatures, including 19 where consent had been granted in all three nations.

Bills subject to consent motions have most frequently fallen within the remit of the Home Office (especially for Scotland, where policing has been fully devolved since 1999), the Department for Business, Enterprise and Industrial Strategy (and its various predecessors) and the Ministry of Justice. Several bills sponsored by the Treasury and the Department for Work and Pensions have required consent from Northern Ireland alone, reflecting the fact that the administration of social security and pensions is devolved. In Wales, consent has often been required for local government bills that do not apply in Scotland and Northern Ireland.

This analysis shows that Whitehall departments have to navigate a complex set of territorial relations to ensure that their legislation functions effectively across different parts of the UK. Mostly this process has worked well and without controversy.

 

The devolved legislatures have voted against consent to Westminster legislation just 10 times since 1999

Legislative consent motions in the three devolved legislatures, 1999 to March 2019

The total number of legislative consent motions is higher than the 202 Acts of Parliament mentioned, because in many cases more than one motion is voted on for the same bill, for instance where amendments at Westminster lead to a requirement for a fresh grant of consent. Our analysis found that the three devolved legislatures have voted on at least 352 legislative consent motions. What is striking about the legislative consent process, aside from how frequently and broadly it has been used, is that in the vast majority of cases it has operated without controversy. In total, out of more than 350 legislative consent motions, on just 10 occasions has consent been denied, in part or in full.

On other occasions, however, concerns raised by devolved ministers have led to amendments or other commitments at Westminster to resolve devolved objections. For example, the Public Pensions Act 2013 as originally introduced would have applied to certain pension schemes under devolved control. The Scottish Government argued that it had not been consulted sufficiently and informed the UK Government that it would not recommend consent. The bill was amended to take out the Scottish provisions, and no consent motion was ever debated.[11] Also in 2013, the UK Government had the Marriage (Same Sex Couples) Act amended to remove Northern Ireland from certain provisions, in light of opposition at the devolved level.[12] The Scotland Act 2016 and Wales Act 2017 were also held up by threats to withhold consent, until agreement was reached on the financial implications of the legislation.

Of the 10 cases where consent has been formally withheld, seven have occurred in Wales, where ambiguity and disagreements over the boundary between devolved and reserved functions have been more frequent.[13] Twice, the bill in question was then amended to meet Welsh objections. Five times, the UK Parliament proceeded to legislate despite the absence of consent, typically because UK ministers did not agree that the disputed provisions were in devolved areas, meaning they disagreed that consent was required.* The Northern Ireland Assembly has only voted against consent once, on the Enterprise Bill in 2016, which was then amended to exclude Northern Ireland from the disputed parts. There was a similar outcome when the Scottish Parliament withheld consent from parts of the Welfare Reform Bill 2011/12: UK ministers agreed to amend the bill and consent was secured. The second time Scottish consent was withheld has been altogether more contentious: this was the vote to deny consent to the European Union (Withdrawal) Act in May 2018.

The normal pattern since 1999 has been for Westminster to respect the Sewel Convention, and for the devolved bodies to grant consent to UK bills where required, often after concessions by UK ministers over the terms of the legislation. The convention has played a central role in facilitating good relations between the UK and devolved legislatures. However, Brexit has placed the legislative consent process under pressure, leaving its status in doubt.

*These cases are discussed in Cowie G, Brexit: Devolution and legislative consent, House of Commons Library, 2018, pp. 47–51, retrieved 15 April 2019, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8274#fullreport

 

The UK and devolved governments disagree on several Brexit bills

Scottish Parliament and Welsh Assembly consent to UK Parliament Brexit bills

The European Union (Withdrawal) Bill was the first bill that the UK Government introduced to implement Brexit. It has been followed by several more that also require consent from Scotland and Wales, because they relate to devolved matters such as agriculture or fisheries, or adjust the powers of the devolved bodies. If the Northern Ireland Assembly were to resume functioning, its consent would also be sought for the same set of bills. However, the collapse of power-sharing in 2017 means that devolved institutions in Northern Ireland have not been able to make their voice heard in the Brexit process.

Devolution took place in the context of EU membership, which was assumed to be a permanent part of the UK’s constitutional arrangements. Currently, even for policy areas that are devolved such as agriculture and the environment, devolved institutions are bound by the same EU laws as the UK Government. This ensures a degree of consistency across the UK nations when it comes to standards and regulations. Once the framework of EU law is removed, however, the default position is that full control of powers repatriated from Brussels will revert to the devolved level if they relate to policy areas that are not reserved to Westminster under the existing devolution legislation. This will increase the potential for policy and regulatory divergence within the UK.

To avert this, the European Union (Withdrawal) Bill – when introduced in 2017 – included provisions to hold all powers repatriated from the EU in Westminster. This was opposed by both the Scottish and Welsh Governments, with Nicola Sturgeon (First Minister of Scotland) and Carwyn Jones (the Welsh First Minister at the time) criticising the bill as a “power grab” by Westminster. Both devolved governments recommended against consent.[14]

After months of negotiations, the bill was amended sufficiently to secure the consent of the Welsh Assembly but not the Scottish Parliament.[15] The UK Government accepted that powers returning from Brussels in devolved areas should return by default to Edinburgh, Cardiff and Belfast. However, it insisted on creating a way for Westminster to freeze some devolved powers for up to seven years. The Scottish Parliament withheld consent for this provision, but the bill was enacted at Westminster nonetheless. This was the first time the UK Government had proceeded to legislate without consent, having agreed from the outset that consent should be sought.

In response, both the Scottish and Welsh Governments called for reform of the Sewel Convention to make it more difficult for Westminster to override the will of the devolved bodies. The Scottish Government proposed an amendment to give the convention legal force, by inserting a provision in the Scotland Act 2016 that the UK Parliament “must not” rather than “will not normally” legislate in devolved areas without consent.[16] Meanwhile, as Welsh First Minister, Carwyn Jones proposed reforms including a new parliamentary stage in the House of Commons for bills where consent had not been granted, so that devolved concerns could be aired and ministers could be held accountable for their decisions.[17]

The UK Government has not responded to these proposals, and for now the Scottish Government has declared that it will not recommend consent for any of the other Brexit bills.[18] This raises the spectre of ongoing conflict between Westminster and Holyrood over the implementation of Brexit and how the two governments should work together after Brexit. Scottish ministers have now laid memorandums opposing consent to the Trade, Immigration, Agriculture and Fisheries Bills.[19] In the latter two cases, they also disagree with the UK Government about which parts of the bills relate to devolved matters. The Scottish Brexit Minister Michael Russell has also said that consent will not be given to the European Union (Withdrawal Agreement) Bill, which will need to be introduced if the UK Parliament approves a Brexit deal.[20] The Scottish Government made an exception for a bill making provision for continued reciprocal healthcare arrangements with countries of the European Economic Area (EEA) and Switzerland.[21] Consent was granted by the Scottish Parliament in January 2019, and the bill received Royal Assent shortly thereafter.

Welsh ministers were also critical of the decision by Westminster to pass the European Union (Withdrawal) Act without Scottish consent, but they have adopted a more emollient approach subsequently. Having backed the Withdrawal Bill itself, the Welsh Government has recommended consent for the Healthcare, Trade and Agriculture Bills. In the latter two cases, the initial position adopted was to oppose consent, but concessions at Westminster enabled Welsh ministers to change their position. Final agreement has yet to be reached on the Fisheries Bill, but here again the UK Government has made amendments to address Welsh concerns, and Welsh ministers believe that it is likely that consent will be granted in the end.[22]

These developments illustrate that despite the tensions in the UK–Welsh relationship, the legislative consent process is still functioning. UK ministers have been willing to compromise to secure consent for their bills, and Welsh ministers have continued to engage with the process. In the case of Scotland, relations are clearly more strained. If consent is withheld from the remaining Brexit bills, UK ministers will face a difficult decision about how to proceed, and whether to press ahead without consent once more. Meanwhile, the parties in Northern Ireland have no formal mechanism by which to give their consent to these bills.

 

Brexit has led to more joint working – with mixed success

Number of meetings of UK–devolved ministerial committees since 1999

Since 2016, UK and devolved ministers have disagreed on various aspects of Brexit and its impact on devolution arrangements. To resolve these differences, they have created new forums involving representatives from the different administrations. But these forums have operated in a sporadic fashion, often at the whim of UK ministers, to the frustration of the devolved administrations.[23] This is not a new issue: ever since the start of devolution, committees of ministers from the four governments have met irregularly and with little transparency, leading to criticism from the Institute for Government and other observers.[24]

Since 1999, the main official forum in which UK and devolved ministers meet has been the Joint Ministerial Committee (JMC). This meets in ‘plenary’ form, referring to summit meetings between the Prime Minister and First Ministers. The JMC (Plenary) is designed to resolve disputes between the governments and to keep the overall state of intergovernmental relations under review. JMC (Plenary) summits are intended to be held at least annually, but they stopped taking place after 2002 for six years. During this period there was no Northern Ireland Executive and the UK, Scottish and Welsh Governments were all Labour-led, so, according to former Scottish First Minister Lord McConnell, formal heads-of-government meetings were unnecessary.[25] The UK and devolved governments agreed to restart these summits in 2008, after the Scottish National Party (SNP) had come to power and a new Northern Ireland Executive had been formed. These meetings have been held most years since then.

The JMC also meets in various ‘functional’ formats, with ministers meeting to discuss issues of joint interest and to improve co-ordination. In 1999, several domestic policy JMCs were established, including for health, poverty and the ‘knowledge economy’. After an initial flurry of activity, these quickly ceased to meet, suggesting that there was little interest in developing common approaches in policy areas that were now the responsibility of the devolved institutions. After 2008, a new all-purpose JMC (Domestic) was established, although that too met infrequently and ceased operation in 2014. A separate ‘Finance Ministers Quadrilateral’ forum also meets occasionally.

The only ministerial committee that has met regularly through the whole two decades of devolution since 1999 is the JMC (Europe). This body has typically met quarterly for UK and devolved ministers to discuss forthcoming business before meetings of the European Council of Ministers. The peak of its activity came in 2004, when the EU Constitution was being negotiated, and the JMC (Europe) met 11 times.

In 2016, after the EU referendum, it quickly became apparent that there was a need for ways of dealing with the tensions and complications caused by Brexit. In October 2016, a new JMC (EU Negotiations) was established, with a remit to “seek to agree a UK approach to, and objectives for, Article 50 negotiations” before starting the withdrawal process.[26]

However, after the governments failed to agree on how to proceed with Brexit, this new body ceased to meet between February and October 2017. This marked a low point in relations between the governments. In March of that year, the Prime Minister Theresa May invoked Article 50 without having developed a common ‘UK approach’ to Brexit. This prompted the Scottish Government to make a renewed push for an independence referendum – only to be rebuffed by the Prime Minister.[27] In July 2017, following the UK general election, the European Union (Withdrawal) Bill was published after limited consultation with Edinburgh and Cardiff, leading to the disputes discussed above.

In October 2017, the JMC (EU Negotiations) was reconvened and, for the first time, agreement was reached on a substantive Brexit issue – the contested question of what should happen to powers repatriated from the EU. The devolved governments and the UK Government reached a compromise: the overall effect of Brexit would be an expansion of devolved policy autonomy, but new ‘common frameworks’ would be required in some areas to limit policy divergence within the UK.[28]

Since then, there have been more regular meetings of the JMC (EU Negotiations), as the UK Government has attempted to reach a compromise on its Brexit bills, and to take forward the development of common frameworks. Despite the continued tensions between UK and Scottish ministers, the JMC (EU Negotiations) and a separate ‘Ministerial Forum’ on Brexit continue to meet. In 2018, they met 15 times. In February 2019, a new inter-ministerial group was created on the environment, food and rural affairs, key areas where Brexit will affect devolved powers. In all these forums, Northern Ireland is represented only by civil servants, due to the absence of a government in Belfast. This means that there are no political representatives from Northern Ireland present in these important discussions.

But while meetings between the UK and devolved governments are taking place more regularly than was previously the case, the key test is whether such interactions help to bring the governments to agreement both on the Brexit legislation discussed above and on the scope and content of new common frameworks to replace EU law in devolved areas. The evidence suggests that there is a long way to go to reach this point.

The UK and devolved governments are struggling to agree on how to replace EU law in devolved policy areas

Areas of EU law where the UK and devolved governments will need to co-operate after Brexit

In 2017, the UK and devolved governments agreed six principles to guide decisions on where common frameworks should be created in place of EU law:

  • to enable the functioning of the UK internal market
  • to ensure compliance with international obligations
  • to ensure that the UK can agree new trade agreements and treaties
  • to enable the management of common resources
  • to provide access to justice in cross-border cases
  • to safeguard national security.[29]

Officials from the four administrations of the UK have since worked together to identify the areas of overlap between EU law and devolved powers and to decide where, in light of the agreed principles, common frameworks may be required. Analysis published by the UK Government in April 2019 shows there are 160 areas of EU law that intersect with devolution in at least one of the three devolved nations, meaning that powers in this area are devolved but currently constrained by EU law. Northern Ireland has the largest number – a total of 157 – due to its more extensive devolution settlement. There are 111 for Scotland and 70 for Wales.

The UK Government believes that UK-wide legislative frameworks may be required in 21 of the 160 areas, although negotiations are still ongoing. The implication is that the UK Parliament would legislate to impose new constraints on devolved policy autonomy in these areas. Many are policy areas where regulatory divergence between the different parts of the UK could create additional costs for businesses, or could make it harder for the UK Government to agree and implement trade deals that open up UK markets to foreign competitors. Of the 21 areas:

  • 16 are in areas led by the Department for Environment, Food and Rural Affairs (Defra), including aspects of agriculture, fisheries, animal welfare, food standards, plant health and chemicals regulation
  • three fall within the remit of the Department for Business, Energy and Industrial Strategy (BEIS): the mutual recognition of professional qualifications, potential replacements for the EU Services Directive and the emissions trading scheme
  • two are in health and food standards: the provision of reciprocal healthcare after Brexit and food and feed safety regulations.

At the time the European Union (Withdrawal) Act was passed, the UK Government expected to use the Act to ‘freeze’ devolution in the areas where legislative frameworks would subsequently be created.[30] So far, this has not happened. Instead, the governments have worked together to try to reach agreement on the terms of the new frameworks. There has been extensive civil service engagement on these issues, which is a positive sign of strong working relationships at the official level.[31]

However, ministers do not appear close to agreement on how these frameworks will operate, or what governance mechanisms should be set up to oversee them. In March 2019, Scotland’s Brexit Minister Michael Russell said that the “the Scottish Government is refusing to have any truck with the UK Government’s invented concept of the supposed needs of some non-existent ‘UK Single Market’”.[32] If agreement cannot be reached, Westminster retains the power to impose new frameworks without consent. But this would be highly controversial and far from conducive to effective joint working between the governments in future.

In addition to these priorities, the UK Government has identified 78 areas of EU law where full control will transfer to Scotland, Wales and Northern Ireland after Brexit, but where non-legislative frameworks may be needed to facilitate co-operation between the four governments. Over half of these policy areas fall under policing and justice, so are devolved to Scotland and Northern Ireland only. Other departments expected to develop non-binding frameworks include the Department of Health and Social Care (DHSC) (for instance on blood safety and organ donation), the Department for Transport (DfT) (particularly with Northern Ireland, where areas such as driver licensing are fully devolved) and Defra (including to ensure common standards on air quality, waste management and the protection of habitats). But not all the powers returning from Brussels will require frameworks at the UK level. There are 63 policy areas that will be devolved in full to one or more of the devolved nations, and where the UK Government believes no UK-wide frameworks will be needed.

Overall, the UK Government’s 2017 commitment that Brexit will lead to “a significant increase in devolved decision-making power”[33] looks set to be met. However, in more than 20 important policy areas, the UK Government faces a challenging task of trying to agree with Edinburgh and Cardiff on how to replace EU law. The potential for further disputes seems high. Improving the operation of the intergovernmental machinery, which is being reviewed at present,[34] will clearly be an important task if post-Brexit common frameworks are to operate effectively.