UK Constitutional Law Association

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Jo Murkens: Brexit: The Devolution Dimension

jo-murkensThe results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU.

But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.

Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electorate as expressed in an advisory referendum? Or to preserve the United Kingdom, which is split 2:2?

The strongest case against EU withdrawal is that it is not in the UK’s interest. On that view, an overriding state interest is invoked not to disregard the will of the people, but to recognise that the result divides the constituent parts of the United Kingdom. Abrogation of the Scottish and Northern Irish results would violate the principle of formal co-equality among the four British nations. That stance almost eagerly invites Irish republicans to re-unify Ireland and Scottish nationalists to launch a second independence referendum.

Of course, if the overriding objective is to give legal effect to the overall numerical tally and withdraw from the EU, then the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.

Amending the devolution legislation would be technically easy, but politically hazardous. It would add fuel to the fire stoked up by Scottish demands for independence. It would place ‘a bomb under the Irish peace process’. If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997. There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.

The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.

The United Kingdom is no longer a centralised state, if it ever was. The devolution arrangements have changed the UK’s constitutional settlement. The old Westminster axis of power has become diffuse through power-sharing agreements with Edinburgh, Cardiff, and Belfast. People who voted Leave may ‘want their country back’, but their country has transformed over the last twenty years.

Under the current arrangements it would be perfectly possible for the family of four nations, acting collectively, to withdraw from the European Union. However, in the absence of unanimity and with awareness of a very delicate situation in Scotland and Northern Ireland, the next Prime Minister and the Westminster Parliament should not divert all political resources to make this purely advisory referendum legally binding. They must channel all resources to keep the Kingdom whole.

Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

(Suggested citation: J. Murkens, ‘Brexit: The Devolution Dimension’, U.K. Const. L. Blog (28th Jun 2016) (available at https://ukconstitutionallaw.org/))

14 comments on “Jo Murkens: Brexit: The Devolution Dimension

  1. Cathryn Costello
    June 28, 2016

    I agree, but when you say ‘There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.’ you should also add Dublin to the mix. Ireland is the state with the most to lose from BREXIT, and the UK has international legal obligations to Ireland under the Good Friday Agreement, a binding international treaty which makes commitments about the future of Northern Ireland. The Northern Irish arrangement are thus unlike the other UK devolution arrangements, and they also entail commitments to another state, namely Ireland.

  2. Murray Campbell
    June 28, 2016

    I might be missing something but I can’t find reference in either the European Union Referendum Act 2015 or the Political Parties, Elections and Referendums Act 2000 to the decision rule for UK referendums. While Professor Murkens argues that each of the four nations in the United Kingdom has a possible constitutional veto power over results, it is also arguable that a UK referendum result requires a double majority, namely: (a) a majority overall; in (b) a majority of the member nations. This interpretation would allow for a more sophisticated majoritarian decision rule, whereby the will of the people is still respected but the EU referendum nevertheless fails.

  3. Inbred
    June 29, 2016

    I can’t accept the argument here – in both the Scotland Act and Northern Ireland Act all issues to do with international relations, including the European Union are reserved matters, the devolved parliaments have no legislative competence on the issue. You can try and mess about with wording all you like but the constitutional principles are clear and overarching – anything would have to be read within the context that all relations with the EU were to be decided exclusively by Westminster.

    • kyoto2
      June 30, 2016

      Schedule 5(2) on Reserved matters states: “International relations, including relations with territories outside the United Kingdom, the European Union (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters.” But this is not merely about international relations, but about the impact on the laws of Scotland.
      http://www.legislation.gov.uk/ukpga/1998/46/schedule/5

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  7. kyoto2
    June 30, 2016

    Quote: “the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland.”

    Can you expand on this point? You seem to be saying that no Article 50 notification can be made prior to the repeal of the ECA1972 etc. This is not obvious … some explanation much appreciated.

  8. Waldronfan
    June 30, 2016

    Leaving aside the politics, isn’t the legal position more straightforward than is made out by those who delve into the devolution aspects. If Scotland remains part of the UK and the UK uses the Art50 process to cease, under EU law, to be a member state of the EU then that is that. The European Communities Act did not make us a member state (the Accession Treaty did), nor does it have to be repealed “first” before we can withdraw from membership. ECA is just what we needed to do in domestic legislation to make good on the promises we gave on becoming a member state. Repealing it as/after we leave would just be tidying the statute book of a spent Act. ECA s1(1) says “All such rights … arising by or under the Treaties … as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law …”. That just gives legal effect in the UK to whatever under the EU Treaties is to be given that legal effect. But once UK ceases to be a member state, the Treaties (and EU law in general) will not purport to require any EU legislation to be given any effect in the UK, so in theory ECA could be left on the statute book without having anything left to bite on. So the point about whether ECA could be repealed without Scottish consent is left with no substance at that stage (eventually, when the dust settled, the two Law Commissions would nag the UK parliament to repeal it as part of their weeding programme for spent legislation).

    But the question is surely only relevant because there is another scenario being floated. Some Leavers are (over-)excited by the possibility of repealing ECA quickly, in advance of the 2-year process for ceasing membership, perhaps to gain some real benefit in the meantime or perhaps just to make a political point. Doing so would put us in breach of EU law, but that in itself would not give our courts a basis on which to treat the EU law breach as grounds to override an Act of Parliament. There would normally be sanctions from the EU, but presumably the idea would be that that would just be rolled up into the exit negotiations. It is only in this scenario that repealing ECA before leaving would engage the Scottish consent and Sewel issues, in that the repeal would actually be changing the legal position in Scotland. Then all the detailed points about the Scotland Acts and Sewel would come into play.

    The obvious answer to that would be for the new UK government to go for the more sensible option of calming down and just waiting to repeal ECA once UK ceases to be a member state. But if sense did not prevail on that, then surely the point is still not that the Scotland Acts and conventions mean Scotland has been given the power to hold up the whole of the rest of the UK. Instead, if it came to that, surely the answer is just that the UK parliament could repeal ECA for England and Wales alone (leaving aside for now the question of which side of the fence Northern Ireland would fall) prior to ceasing membership, and just amend ECA to add a section saying “This Act extends only to Scotland”. That would not trigger the Sewel issues, because UK parliament would not be changing the legislation as it applies to Scotland. Scotland would then continue to have ECA applying to it, and that would continue to have some bite, until UK ceased to be a member state. Scotland could ask for whatever tweaks it wanted to ECA as applied to Scotland for the interim period, with none of that having any legal effect on England & Wales. But it is surely clear that it is an abuse of Sewel to try to twist it to claim a right for the Scots to object to England-Wales-only legislation.

    None of this applies if Scotland gains its independence and rUK leaves EU while Scotland stays in EU. But obviously then the settlement between rUK and Scotland is much bigger than Sewel, and rUK will not claim to be entitled to legislate for Scotland any more than Scotland will claim to be entitled to stop rUK legislating for itself.

    Then aren’t all the other points about the Scotland Acts & Sewel just a case of failing to see the wood for the trees?

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  13. fintaann
    October 23, 2016

    Really interesting

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