Leaving the EU will have wide, and unpredictable, effects on the UK’s devolved administrations. Mark Rowe reports on what the outcome might be
Twenty years of devolution has left a political landscape that combines separate, overlapping and shared responsibilities. Just to complicate matters, some devolved powers, notably agriculture, fisheries and the environment, are in practice largely exercised at EU level. "Since we joined the EU we have enabled EU institutions to make law for the UK," says Dr Andrew Blick, director, History and Policy at King's College London. "Parliament is clawing powers back but things have changed, not least the fact we now have three devolved governments."
The question of what happens once the UK 'takes control' back from Brussels appears to lack a clear answer. The UK government consistently asserts the devolved regions will retain all powers they already have. Meanwhile, the issue of devolved policy areas currently constrained by EU law is supposed to be addressed by clause 11 of the European Union (Withdrawal) Bill, which asserts that these powers come back first to Westminster. The prime minister, in her Lancaster House speech in January, said she recognised the need for “working very carefully to ensure that – as powers are repatriated from Brussels back to Britain – the right powers are returned to Westminster, and the right powers are passed to the devolved administrations.”
The devolved nations, however, disagree. "Scotland argues these policy areas happen to be constrained by EU law at the moment but they are devolved, so they should come back to the devolved regions immediately," says Akash Paun, a fellow of the Institute for Government.
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Other experts maintain that parliament remains constitutionally supreme, and can set the rules. "The Scotland Act is itself subject to express repeal. If Westminster so decrees, it can do so,” says Dr Tobias Lock, a senior lecturer at Edinburgh Law School, University of Edinburgh. This means that, in reserved areas that are currently subject to EU law, the UK parliament should regain the ability to legislate without restriction.
"The initial question is whether a compromise can be reached that will enable the Scottish and Welsh governments to recommend consent to the [withdrawal] bill," says Paun. “That's the key fork in the road. If they can't reach a compromise then the British government has a big decision to make. Could Westminster say 'tough luck, this is what's going to happen' and just ignore [the devolved administrations]? That would take us into serious crisis territory and wouldn't be conducive to the co-operation that is going to be necessary."
For the civil service, the list of policy areas up for discussion to be devolved is long, from state-aid rules to fisheries, police, justice and health service co-operation. In a joint letter sent by the Scottish and Welsh first ministers in September to prime minister Theresa May, Scotland listed 111 policy areas it wants to scrutinise, Wales outlined 64. The figure for Northern Ireland has not been published but the IfG believes it to be even higher.
The civil service across the UK is already creating new roles as it prepares for Brexit but Blick cautions that any shift of powers to devolved nations would require a significant recruitment drive – more targeted and specialist than anything that is currently underway – as these administrations prepare to take on new policy areas. "There are practical questions such as where do we get these people from? Why would someone leave a business to work for the civil service [for less pay]? Will it be like the world wars, with a large influx that is let go after a while? During the war a database of expertise from academia and businesses helped recruit people en masse."
Such a policy would raise issues around conflict of interest, warns Sue Ferns, deputy general secretary at Prospect, which represents many civil servants in Wales and Scotland. ''We may need experts in plants and regulations on bio-security hazards. We would need huge numbers of inspectors. There's a possible conflict of interest in experts from the commercial sector acting on behalf of the government." Blick agrees with this point: "You raise questions about probity and ethics if they then return to industry afterwards."
Another pressing issue, says Ferns, is the tight timescale. "We are all waiting for the gun to fire to start things going. Everyone is in a holding bay until we know what kind of Brexit we are going to get, whether we will be in the single market or not."
The concern, says Ferns, is that the civil service will only know at the last moment where it will need expertise and additional staff. "It's been a problem for most of the period since 2016 because politicians have been pulling in quite different directions, whether they be in the devolved regions or the [UK government] cabinet," says Paun. "That makes it really difficult for officials to engage because there has been no sense that they have been working on a common project."
The civil service risks being overwhelmed, argues Lock, by the need for increased capacity and skills to enable devolved nations to take on more powers. "In terms of policy making you will definitely need to find people who can do that.” Better, he argues, not to overburden the civil service "even more than it is already" and ensure that such powers be phased in over a period of, for example, five years.
There may also be existential questions for the structure of the unified Home civil service, says Blick. "How sustainable is it having a civil service for Great Britain? Would it be more helpful if the Welsh and Scottish civil service were separate entities?" In such circumstances, Lock envisages border guards at Scottish ports being Scottish border guards rather than British ones. 'If powers are going to be devolved you can think about moving the civil service from the Westminster payroll to a Scottish payroll," he says.
Opportunistic power grabs may also leave the civil service playing catch-up, says Lock. "The devolved governments have a lot of power and they will try to use it to get concessions," he says. "The golden prize for Scotland would be devolved powers on immigration. To me it seems that agriculture and fisheries are just a nightmare, horrible areas for devolved nations to inherit. I could see Scotland offering to allow Westminster to keep those policy areas but in return seeking more devolution on immigration."
When – if – the issue of who gets which devolved powers is settled, another challenge awaits: the need to strike a balance between devolved laws within the UK. This matters, say experts because of the emphasis the UK government places on preserving a single UK market, so that when the UK seeks third-party trade deals after Brexit it can negotiate as a single party with a unified set of rules.
The House of Lords European Committee, in its July 2017 report on Brexit, describes “a three-sided relationship, in which many key powers are exercised neither in Westminster, nor in Edinburgh, Cardiff and Belfast, but in Brussels.” The EU, the committee concluded, is effectively 'the glue that holds the UK single market together.'
In a Brexit world, says Lock, what happens if England decides it will import GM crops but Scotland won't? "If we get a trade deal with the US that involves chlorinated chicken and Scotland and Wales governments may say they have the right not to sell it," says Blick. "What if Westminster then says 'sorry, we are going to overrule you'? We haven't got a satisfactory institutional and constitutional mechanism to deal with that."
In effect, the civil service will be charged with drawing up and implementing a mechanism of governing across the UK and its devolved regions that plays the part of a constitution. "It may not be called a constitution," says Blick, "but there is going to be political pressure and the pressure of logic that we need some kind of set of rules to perform the function of a constitution and that allows group decision making."
Gazing into the crystal ball, Paun concludes it is "unlikely that everything is going to be sorted out in advance in a completely satisfactory way." In the face of such complexities, the civil service will do its best, says Ferns. "Our members are as well motivated as public servants as they have ever been but they are not magicians, They cannot conjure up resources were they do not exist. Resources have been hollowed out for years and years."
Patchwork of powers
Devolution settlements have developed incrementally and asymmetrically since 1997 (when referenda supported the creation of a Scottish Parliament and a National Assembly for Wales; in Northern Ireland, devolution was a key part of the Good Friday Agreement, endorsed by voters in a referendum in 1998).
Devolution across the UK is not haphazard, but neither is it uniform: agriculture, environment, education and health are all devolved to Scotland, Wales and Northern Ireland, as are housing, local government and the fire services. Highways and transport are devolved to Wales but only some transport is devolved to Scotland. England looks after its own health, education, environment, justice and policing but Scotland MPs (and those from Wales and Northern Ireland) get to vote on these matters too.
Matters that are not devolved: defence and foreign affairs, immigration, energy, social security, trade and industry, and some transport, such as aviation.