By Sara Joy - Law Student @ Downing College, Cambridge
Devolution concerns the transfer of power by a central government to regional legislatures. In the UK, these legislatures are Scotland, Wales and Northern Ireland and each legislature has its own devolution settlement which outlines the legislative competence of the nations. However, the UK’s exit from the European Union was an event with vast constitutional implications and has the capacity to undermine these devolution settlements. The UK’s government lack of territorial inclusion when legislating on crucial matters post-Brexit is evidenced in the passing of the Internal Markets Act 2020 and the lack of voice afforded to the devolved legislatures is likely to give rise to discontent which in turn threatens the stability of the Union.
Elliot and Thomas claim, “devolution might exert such strong centrifugal forces as to make the Union unviable, thus making its eventual disintegration inevitable” and poses the solution as an exertion of countervailing centripetal forces to hold the Union together. This argument exists on the assumption the devolved legislatures and the UK government can only act antagonistically. Arguably, this is incorrect and instead, a greater level of cooperation must be sought rather than a competing exertion of powers. The asymmetrical nature of devolution in the UK makes the government’s ‘constitutionally homogenising’ approach and rejection of a territorially inclusive approach predictable. This approach is revealed in the Internal Market Act 2020 which aimed to secure an internal market which allowed for the easy transport of goods across nations. The act ensures goods legally sold in one part of the UK can also be legally sold in another part of the UK, excluding Northern Ireland due to the Northern Ireland Protocol.
However, this has been interpreted by Scottish ministers as a ‘power-grab’ as it undermines the powers of product regulation which were previously devolved, hence undermining provisions in the devolution settlements which had granted this power. In effect, this piece of legislation might be interpreted as undermining the settlement as it ‘re-reserves’ powers previously devolved by preventing the effective use of these powers. For example, Wales had announced in March 2020 that they were planning to ban single-use, hard to recycle and commonly littered plastics. However, the creation of this regulation would be severely undermined by the fact these plastics could simply be imported into Wales from the other devolved nations. The Welsh Government has now launched a legal challenge to the Act on the grounds it undermines the devolution settlement by impliedly repealing parts of the Government of Wales Act 2006 in a way which diminishes Wales’ legislative competence and allows UK ministers to use Henry VIII powers to greatly amend this devolution Act.
The House of Lords Select Committee (2017) reject the notion of embarking on “controversial amendments to the devolution settlements” in an attempt to make a “power-grab” and it would seem this is exactly what the UK government has done. The committee urged for a “constructive” and collaborative approach, involving the consent and approval of all the nations in the UK. This ‘common frameworks’ approach to the issue of creating an internal market whereby all nations would be involved in creating the minimum standard for goods to be transported across the entirety of the UK would have been a more satisfactory approach. This is because it would grant the devolved legislatures more equality in discussions concerning the future of a post-Brexit UK and help preserve powers given by the devolution settlement without threatening the stability by making it unviable as feared by Elliot and Thomas.
Though all three devolved legislatures have expressed discontent towards the UK government’s approach in dealing with Brexit matters as it exposes the prevalence of the central government’s demands, the immediacy of desires to leave the UK manifesting are varied. The 2019 Scottish Referendum revealed a narrow decision to ‘Remain’ only being achieved by promises for greater devolution to Scotland which suggests that the situation is more dire than in perhaps Wales or Northern Ireland. However, a continued refusal to grant the devolved legislatures significant say in the vastly important constitutional matters inherently undermines the spirit of devolution settlement and is likely to result in the eventual break-up of the Union.
An introduction to Devolution (Civil Service): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/770300/IntroductionToDevolution.pdf
Introduction to aims of Internal Market Act 2020 (GOV.UK): https://www.gov.uk/government/publications/complying-with-the-uk-internal-market-act-2020/an-introduction-to-the-uk-internal-market-act
Commentary on Internal Market Act and devolution (Stephen Weatherhill): https://ukandeu.ac.uk/will-the-united-kingdom-survive-the-united-kingdom-internal-market-act/