By Mark Smulian

14 Mar 2018

Cabinet Office has moved to win support from devolved governments for the EU Withdrawal Bill, but it may not be enough to repair trust

Cabinet Office minister David Lidington has promised significant changes to the EU Withdrawal Bill in an attempt to win support from devolved administrations. Speaking in Wales in late February as part of a series of six ‘Road to Brexit’ speeches made by cabinet members, Lidington sought to allay fears that Whitehall was staging a power grab as it brought responsibilities back from Brussels. He promised that “the vast majority of powers returning from Brussels will start off in Edinburgh, Cardiff and Belfast – and not in Whitehall”, while outlining the need for common rules and regulations across all parts of the UK.

Devolved governments have been concerned about what will happen to powers formally devolved but in practice regulated by EU law, such as fisheries, environment, agriculture, animal welfare and aspects of public health and transport.

The EU Withdrawal Bill currently says these will be returned to Whitehall and then selectively devolved to other administrations. The Scottish and Welsh governments have both indicated that as things stand they will not put forward the EU Withdrawal Bill for devolved consent votes, and have tabled their own legislation to prepare for Brexit.

Pledging to introduce amendments to bring in a presumption in favour of relevant EU powers being devolved, Lidington said: “Let’s be in no doubt: this would mean a very big change to the EU Withdrawal Bill that is before Parliament and a significant step forward in these negotiations.”

He continued: “We have to ensure, as we are determined to do, that Brexit means more powers going to the devolved governments and not fewer. Some [powers] are very obviously for the devolved governments and parliaments to exercise, and don’t need any involvement on a UK-wide basis.”

He added, however, that: “Some powers are clearly related to the UK as a whole and will need to continue to apply in the same way across all four nations in order to protect consumers and businesses who buy and sell across the UK, in all parts of what we might call the United Kingdom’s common market. That market is one of the fundamental expressions of the constitutional integrity that underpins our existence as a union.”

“Westminster has gone for a risk averse approach. That says ‘trust us’ but the administrations needed to be engaged earlier for that to have happened, and Scotland and Wales are now dug into opposition positions.”

But which powers come under which grouping? Akash Paun, senior fellow at the Institute for Government, explains: “It is not easy at all to reach agreement and this goes back to a theological disagreement on the constitutional position between Westminster and the devolved administrations, on the large policy areas that are not reserved to Westminster but which are highly regulated by EU law.

“In Scotland and Wales they take the view that after Brexit these repatriated powers should be devolved, as they are already but subject to conditions in EU law. The sticking point is that the government is committed to frameworks [to protect] the UK single market, but the devolved administrations’ view is that it needs to be negotiated by consent.”

Ronan McRea, senior lecturer in law at University College London, agrees that unravelling this conundrum will be fraught, as the UK’s devolution settlement was predicated on the UK being in the EU.

“No one thought about the possibility of not being in the EU in 1998. If EU laws are removed it could radically change things in some areas, such as agriculture.”

He says that “legally” Westminster could continue with the approach of selectively devolving some areas without consent of the devolved administrations, but “politically, I think they would need [consent]”.

Paun suggests that what Lidington said was “not unreasonable, and recognises in some areas full devolution could create a risk of regulatory divergence within the UK”.

He adds: “It comes down to what they can agree. If they can’t, in the end there is no way round Westminster making the decision.”

One problem is the mistrust that has developed between Scotland and Wales on the one hand and Westminster on the other as the Brexit process has gone on. Paun says: “A lot of what the UK government has done has lost the trust of the devolved administrations and that makes it a lot harder to reach a compromise now.

“When setting out the UK approach there was only very limited consultation with the devolved administrations. They were barely consulted on the EU withdrawal bill.

“Westminster has gone for a risk averse approach. That says ‘trust us’ but the administrations needed to be engaged earlier for that to have happened, and Scotland and Wales are now dug into opposition positions.”

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