Brexit: the UK and Scotland

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2019 marks the 20th anniversary of the opening of Scottish Parliament, and as the physical embodiment of Scottish devolution from the UK parliament, it has grown in stature over that time, as more legislation has been passed and greater powers devolved to it. Brexit has resulted in a renewed focus by politicians and commentators on intergovernmental relations between the UK and devolved administration in Scotland, particularly in relation to the repatriation of EU law to the UK and also the role of the Scottish Parliament and government in policy discussions and decisions regarding the UK’s international relations.

The current arrangements

UK intergovernmental relations are set out in a Memorandum of Understanding between the central and devolved administrations, dating from the creation of devolved legislatures for Scotland, Wales and Northern Ireland. It has been revised on several occasions since and is supplemented by Concordats on European Union Policy and International Relations. The MOU established a forum called the Joint Ministerial Committee (JMC), comprising ministers from the UK and devolved governments. Beneath that, subject-specific sub-committees of varying shelf-lives have been established over the years, most recently on EU negotiations (JMC-EN) following the June 2016 referendum.

The structures and practices underlying intergovernmental relations in the UK have been the subject of several inquiries over the last 20 years; and several reports produced by both UK and Scottish parliamentary committees have highlighted perceived failings in the current system and made recommendations for reform.

Common frameworks

The process of leaving the EU has given rise to the proposed creation of common frameworks in areas where EU law currently intersects with devolved competence. The aim of these common frameworks is to ensure continued legal and regulatory consistency in each of the jurisdictions once these areas of law have been returned to the UK.

At a meeting in October 2017, the JMC(EN) reached agreement on the principles for common frameworks however, this agreement left major questions unanswered about how the principles will be interpreted, where common frameworks will therefore be established and what form they should take.

Since then, significant progress has been made between the governments to agree the way forward on common frameworks, however the proposal to create them did not persuade the Scottish Parliament that legislative plans for repatriating EU-derived law post-Brexit would sufficiently acknowledge the role of the parliament and government in Scotland. It went on to refuse its consent to the UK government’s EU Withdrawal Bill, believing it to represent a restriction on devolved competency of the Scottish Parliament.

The Scottish Government promoted its own continuity bill as an alternative to the UK government legislation but after a ruling by the UK Supreme Court, which decided that aspects of the Scottish bill were outside the competence of the Scottish Parliament and therefore not law, it is the European Union (Withdrawal) Act 2018 that currently provides the basis on which Scotland’s statute book will be prepared for Brexit.

The need for a new Governance Agreement?

We believe that the process of leaving the EU provides the opportunity to reform the existing arrangements for UK intergovernmental arrangements, as the UK seeks to redefine its relationship with the EU and create new international trading links.

Putting the arguments for or against continued EU membership aside, we agree with the analysis in the Scottish Parliament Briefing Paper Common UK Frameworks after Brexitthat the UK’s membership of the EU contributed to the weakened state of domestic intergovernmental relations, since “many policy issues with a cross-border component (including environmental protection, fisheries management, and market-distorting state aid) were addressed on an EU-wide basis”.

We therefore support the recommendation made by the House of Commons Public Administration Select committee in its report Devolution and Exiting the EU: reconciling differences and building strong relationships that the UK Government takes the opportunity provided by Brexit to seek to develop, in conjunction with the devolved administrations, a new system of intergovernmental machinery and ensure it is given a statutory footing. Doing so will make clear that intergovernmental relations are as important a part of the devolution settlement as the powers held by the devolved institutions.

A review of intergovernmental relations has already begun and when it is published, the Law Society of Scotland will analyse the proposals to ensure that they respect devolution principles and the distinctive nature of the Scottish legal system.

Katie Hay is Head of International at the Law Society of Scotland.

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