Brexit and Devolution - Unchartered Territory

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The Brexit result last year came as a shock to a great many people, with the result broadly expected to go in favour of Remain. The legal implications raised reach far and wide, but the reality is that nobody knows exactly how the next few years are going to play out - we truly are in uncharted territory.

What we do know, however, is that Brexit negotiations should be concluded by the end of March 2019, unless an extension is sought and agreed unanimously by all 27 EU Member States.

Of course, the European Parliament will also have a vote at the end of the negotiations by deciding whether or not to grant consent to the agreement, which should take place shortly before the next European Elections in 2019 - something many domestic politicians keep forgetting.

Yet there is no certainty of a deal being reached. If this is to be the case, then Britain faces a Brexit cliff edge - a legislative black hole that would dramatically appear as the UK leaves the European Union - a wholly undesirable situation.

Anything beyond this is pure speculation, but looking at the potential fallout from leaving the European Union is still a useful exercise in its own right.

The fact that the majority of voters in Scotland (62%) and Northern Ireland (55.8%) voted to remain, will clearly have implications in Brexit negotiations. The Sewel Convention may well be employed, which would require the consent of Holyrood as a pre-condition to Westminster legislating on devolved matters.

Theresa May has repeatedly stressed that she intends to keep the devolved administrations fully engaged in the negotiations, which will now be more important than ever - following the General Election and the first ministers of Scotland and Wales having called the EU Repeal Bill a “naked power grab” and threatening to block the legislation, after it was confirmed that the devolved administrations will not automatically receive any new powers.

However, the Scottish Secretary, David Mundell, has rejected these claims, maintaining it would lead to a “power bonanza” for Scotland & Wales, with Ministers able to amend UK laws without consulting Parliament through so-called “Henry VIII” powers under the legislation, so laws will essentially be transferred to the devolved assemblies after passage of the bill.

Whilst Scotland’s First Minister, Nicola Sturgeon, has essentially conceded that a Scottish Independence Referendum is unlikely until at least after Brexit, the powers of the Scottish Parliament look increasingly likely to change regardless of the developments following the Repeal Bill, with property issues, family and criminal law all likely to remain distinct from the UK. 

At a recent hearing in the European Parliament’s Legal Affairs Committee, the Lord Advocate of Scotland, James Wolffe, spoke about the specific effect Brexit will have on Scotland, due to the UK’s several different legal systems, stressing that the body of EU law applicable to Scotland would need to be assessed once Britain leaves the EU.

In relation to Wales, of course, there will be huge funding implications as a result of Brexit. Despite the country receiving £680 million of EU funds every year, on account of the European Regional Development Fund, Wales still voted in favour of leaving the EU (52.5%). Consequently, Westminster will very likely be required to fill this hole.

Perhaps one of the most concerning aspects of Britain’s exit from the European Union is that of the Irish border. How will this be dealt with? Will it be a hard or soft border? Does the Conservatives deal with the DUP threaten the stability of the Good Friday Agreement? Only time will tell.

Peace in Ireland though is one of the greatest European achievements of the past few decades and this must not be threatened by Brexit negotiations.

These issues are really only the tip of the iceberg - there are so many unanswered questions left in our minds when it comes to Brexit. The nature and scale of it is completely unprecedented and as a result we find ourselves in the unusual position of being unable to answer everyone’s questions.

This feeling of being in unchartered territory has become all too familiar over the past year, so we must seek to capitalise on this by taking the time to carefully think through the negotiations every step of the way and do what is best for the whole of the UK. Maintaining the integrity of Britain is also an added challenge as we exit the EU. Without it, our standing in a host of multilateral fora - not least our UN Security Council seat - comes into question.

Sajjad Karim MEP became MEP for in 2004 and was re-elected in June 2009 and in 2014 representing North West England for the Conservative Party. He is a solicitor by profession as he qualified as a solicitor of the Supreme Court of England and Wales in 1997 and rose to becoming an equity partner very quickly specialising in cases of serious fraud defence work. Sajjad has been the Legal Affairs Spokesman for the Conservatives in the European Parliament in 2009. He was reappointed to this front bench position in June 2014 following the European Elections in May and he serves as a full member of the Legal Affairs Committee (JURI). As well as having been a Spokesman to the WTO, Karim Chairs the European Parliament South Asia Trade Monitoring Board; South Caucases Delegation and is rotating chair of the powerful Parliamentary Conduct Committee.

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