What will remain of the devolved UK after Brexit?

What will remain of the devolved UK after Brexit?

Janice Morphet

Is the Prime Minister’s hard line Brexit position now undermining the union in Scotland and Northern Ireland? Following her appointment as Prime Minister, Theresa May travelled to Edinburgh to meet the First Minster, Nicola Sturgeon. In an attempt to reassure the people of Scotland, who voted to remain in the EU in the referendum, the Prime Minister said that she would ‘listen to options’, “I have already said that I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50.” How hollow does this commitment sound now, some eight months later?

The European Commission was one step ahead of the British media when Michel Barnier was appointed as their lead negotiator in the Brexit negotiations. His experience in security and in the negotiation of the Good Friday Agreement in 1998 was regarded as insufficient for the forthcoming discussions by the British commentariat, for example, the Telegraph’s Laura Hughes. However, as the months have passed, security appears to be the Prime Minister’s only concern in the Brexit negotiations, with membership of the single market and customs union abandoned, together with membership of the Council of Europe that will be forfeited when the UK pulls out of the European Convention on Human Rights which is also one the Prime Minister’s stated objectives. So where does that leave the state of the union?

The first reflection must be on the obvious and apparent weakness of the institutions that were set up to maintain relationships within the devolved nations of the UK in Strand 3 of the Good Friday Agreement. Through this, the British Irish Council (BIC) was particularly tasked with developing more integrated approaches to working together across the nations together with Ireland, Jersey, Guernsey and the Isle of Man(Morphet and Clifford 2016). The BIC has met twice yearly since its inception with rotating venues and chairs. A permanent secretariat was established in Edinburgh following the St Andrews Agreement and twelve task groups have been developing common approaches to specific policy areas. While all BIC members have been consistently represented by their head of state or First Minister, the UK and England have been represented by the same Minster.  This was the UK Deputy Prime Minster and, since the abolition of this role in 2015, it has primarily been attended by the Secretary of State for Northern Ireland.

An emergency meeting of the BIC was called in July 2016 after the referendum to discuss the position of the devolved administrations and May instructed her Secretary of State for leaving the EU, David Davis, to meet First Ministers monthly. However, the warm words and reassurances that were given have quickly been replaced by a hard-line approach from Davis and the BIC meetings have returned to an internal agenda. For Scotland, the government has produced a reasoned case about Scotland’s Place in Europe, which appears to have been ignored by Whitehall. In her speech to Scottish Conservatives in March 2017, the Prime Minister abandoned her initial line, indicating that there would be no concessions to any devolved nation in the Brexit negotiations. The response from the First Minister has been to reinforce her already stated position that a hard Brexit would leave Scotland with no choice but to consider another referendum on Scottish independence, timed before the final arrangements for Brexit are agreed.

Meanwhile, in Northern Ireland, the breakdown of power sharing and the subsequent election has reflected a change in the mood there. The majority vote for remain in the EU referendum has been reinforced by the results, with Sinn Fein narrowly placed second in the popular vote. This means that the unionists no longer have overall control of the Assembly with the Democratic Unionist Party (DUP) losing ten seats. The change in the electoral balance may reflect concern about the role of the former DUP First Minister’s role in the Renewable Heat Incentive scheme although it may also reflect other issues.

Since the Brexit vote, the DUP has failed to make any statement or preparation for what might follow and has acted as if the status quo will prevail. In contrast, Sinn Fein has been active in campaigning in the European Parliament and has won support for specific funding for Northern Ireland in the event of Brexit. They have also been campaigning in all EU capitals to allow Northern Ireland some special status after Brexit to support its economy and in recognition of its history. Further, before the recent Northern Ireland election, the Taoiseach made an agreement with the President of the European Commission, that if Northern Ireland ever makes a political relationship with Ireland, it can have an immediate return to the EU, using the East German model. Finally, the Good Friday Agreement is registered as an international treaty with the United Nations and under the Vienna Convention on treaties, it cannot be changed through the domestic legislation of one of its signatories. Any change will also require the agreement of the EU, Ireland and the United States. This was all known to the electorate when exercising their vote.

However, Northern Ireland faces other challenges from Brexit apart from the economy. The Prime Minister has included the continuation of the common travel area (CTA) set up after partition in 1923, in her Brexit White Paper. This will be important as 30,000 people work across the border and now many services for health and education operate as if there was no border.  While this border was the most militarised in Europe twenty years ago, there are now more than 1million movements across it each month. However, the CTA will only apply to people and not to goods. Once out of the Single Market and the customs union, all goods crossing the border will be subject to checks either routinely or sporadically. This will bring the reintroduction of border posts and attract the smuggling and organized crime that operates across hard trade borders. As the CTA operates within the island of Ireland, this will suggest different passport arrangements for entering Great Britain and could lead to different systems in parts of the UK. While there are only murmurings about political reunification within the island of Ireland, these might be expected to increase and have surfaced in the power sharing discussions following the March elections.

Following Brexit what powers will the parliament and assemblies of Scotland, Northern Ireland and Wales have? Their powers are primarily for the implementation of EU legislation that the UK government has negotiated. The powers of devolution are also anchored in the subsidiarity principles contained in the EU treaties of Rome (1957), Maastricht (1992) and Lisbon (2007. Without these treaties, there is no requirement for the UK government to apply them The OECD, with its policy of pursuing the alignment of subnational governance with functional economic areas remains, but this is not judicable in the same way as a treaty. There have already been signs that Whitehall is seeking to recentralise devolved policies post-Brexit and has already started to reclaim powers from Wales that were devolved in 1998.

In England, devolution not been focused on the nation but through functional economic areas (FEAs) served by directly elected executive mayors. London had the first in 1999 and in May 2017, there will be six more. These new mayors will be responsible for combined authorities (CA) that approximate FEAs in sub regional economies. When the Houses of Parliament close for restoration works it has been suggested by The Economist amongst others that Parliament should be moved outside London. The introduction of English votes for English laws (EVEL) has made some attempt to separate the democratic accountability for English legislation but this is hardly an equivalent to the Parliament and assemblies in the devolved administrations. Perhaps, once of the whole of England has directly elected mayors serving combined authorities together with London, these could create a powerful group of decision makers.

So what will remain of a devolved UK following Brexit?  Will Whitehall want to devolve the powers it has just regained from the EU? It is hard to say but without the underpinning principle of subsidiarity in the EU Treaties, it is a UK policy with no anchor and independence may appear to be a more attractive option. Introducing a written constitution might save this, if the subsidiarity principle is included. Without subsidiarity, there are no guarantees and devolution will hang by a slender thread, at the mercy of each incoming government. Is the Prime Minister endangering the Union? We wait to see, but saving it may need a different approach to Brexit. Within the UK as in the EU, Whitehall and Westminster have little inclination for team work. Together they may win ‘independence’ but the price might be the United Kingdom.

Morphet, J. and Clifford, B., 2016. ‘Who else would we speak to?’ National Policy Networks in post-devolution Britain: The case of spatial planning. Public Policy and Administration, p.0952076716669978.


Janice Morphet is Visiting Professor in the Bartlett School of Planning at University College London, and was on the Planning Committee of the London 2012 Olympic Games. She was  a Senior Adviser on local government at DCLG 2000-2005 and worked on local authority constitutions and represented the Department on local government matters across a range of Whitehall Departmental projects including health, older people, benefits, smart cards, personal identifiers and children’s services. Her recent books are Modern Local Government (2008), Effective Practice in Spatial Planning (2010), and How Europe Shapes British Public Policy (2013).