In the immediate aftermath of the EU referendum result, political comment from a number of quarters suggested that the Scottish Parliament could vote to block Brexit. For the comprehensive reasons given by Mark Elliott on his blog, that was a triumph of hope over the constitutional competence of the institution. However, that is not to say that the structures of devolution do not have a significant role in the working out of Brexit, and may yet act as a trigger for wider constitutional change. This post will suggest that the place of the devolved institutions has been underplayed in the debate thus far, and seeks to identify some of the issues which will require to be addressed. These include: the operation of the Sewel convention and other steps to take account of the interests of devolved areas, discussions around the place of Scotland in the EU, and some effects on structures in Northern Ireland.

Quality of the engagement with devolved institutions on this issue matters for at least two reasons. First, at a basic constitutional level, institutional competence requires to be respected; and secondly there are issues of political legitimacy. While the UK is of course the EU member state, devolution connotes some degree of respect for the political voice of the devolved unit, and both Northern Ireland and Scotland voted decisively to Remain (55.8% to 44.2% and 62% to 38% respectively).

Sewel convention

I have written before on this blog and elsewhere about the Sewel convention and potential limitations on the legislative power of the UK Parliament. Provision has now been made to give statutory effect to part of the convention in section 2 of the Scotland Act 2016, and similar provision is likely in the current Wales Bill.  Section 2 provides:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

While the precise effect of that provision can be debated, there is no doubt that it does not extend to the scope of devolution itself, although the composition of and elections for the Scottish Parliament are now devolved matters (see Scotland Act 2016, Part 1). However, many areas of devolved competence in Scotland engage the UK’s EU obligations directly, whether in whole or in part. Fishing, agriculture, environmental matters, infrastructure, and public procurement readily provide examples. Other areas are perhaps more charged because they lie across the boundary of competence: free movement is as important to the Scottish economy as it is in many other parts of the UK, and immigration is plainly a contentious aspect of the debate surrounding Brexit. For reasons developed by Tom Mullen and Sarah Craig, there is reason to to debate whether the Sewel convention was properly observed in the passage of the Immigration Act 2016.

That illustrates a broader point. In both the framing of the UK’s negotiating mandate for negotiations pursuant to Art 50, and, afortiori, in the inevitable legislation making consequential provision for amendment or repeal of existing UK statutes, devolved competence will be engaged: probably across most of its breadth. The Sewel Convention of course relates only to legislation, nonetheless if it has any meaning terms of practical politics, it implies that a structure involving the devolved institutions in that process is required. So far as the former is concerned, a Memorandum of Understanding akin to the Edinburgh Agreement relating to the independence referendum, is a possibility. That would afford recognition of the place at least of the devolved administration and provide a focus for inter-institutional engagement. Management of consequential provisions poses challenges on an altogether larger scale, to some extent those will flow from the structure and terms of whatever emerges from the Art 50 negotiations, but will of necessity involve a process for retaining those parts of the acquis which are necessary for the UK’s continued relationship, as well those parts of the acquis which are thought desirable to retain in any event. Then there would require to be provision dispensing with other parts of the acquis. Since it is not inconceivable that retaining some EU provisions within areas of devolved competence might be attractive to a Scottish (or Welsh or Northern Ireland) administration, that too is less straightforward that might first appear. Failure to address these points, however, might conceivably result in a Sewel crisis should legislative consent be sought from a devolved legislature – most likely the Scottish Parliament – and refused.

Another point will inevitably arise. As Paul Reid has noted, on the premise that Scotland remains part of the UK, the definition and quite possibly the allocation of devolved competences will require to be addressed because these are currently defined with reference to the EU. Leaving aside Reid’s (justifiable) call for rationalisation of competence in a principled way, such change will also engage the debate about the scope of that part of the Sewel convention which was not enacted: namely, the notion that the UK Parliament should only legislate to amend the devolved structures themselves with the consent of the devolved legislature. That, of course, opens a much bigger question about the proper relationship between the centre and the devolved parts.

Place of Scotland in the EU

In a related development, the Scottish Government has recently appointed a minister to lead its discussions with the UK Government on Scotland’s future relationship with the EU.  The official announcement indicated that:

“We already have an agreement with the new Prime Minister that the Scottish Government should be fully involved in the development of the UK Government’s position ahead of Article 50 being triggered and beyond, and that options to protect Scotland’s relationship with Europe will form part of these discussions.”

This is not merely a post-referendum position. While there is no doubt a pro-independence dimension to the current Scottish Government sharing a stage with international actors, support for EU membership in Scotland has been consistently higher than elsewhere in the UK. It is also a recognition on the part of the Scottish Government of a need for formal intergovernmental architecture, something which has heretofore been absent from devolution.

Northern Ireland

Since the Belfast Agreement engaged not only the UK Government and Northern Irish political actors, but the government of the Irish Republic, the structure of devolution in Northern Ireland has unique features, some of which are thrown into sharp relief by the Brexit process in addition to the Sewel problems which arise in Scotland. In particular, implicit in the Agreement is the idea of EU citizenship across the island of Ireland, with all that implies in relation to freedom of movement and of trade. The political significance of an open border in Ireland is obvious to all who live on the island, and perhaps is not sufficiently remembered elsewhere in these islands. Also embedded in the agreement is respect for fundamental rights derived both from ECHR and arguably also from EU law. The complications which would arise in the event of a future border poll mandated by the Agreement has already been raised by the Irish Taoiseach.

In addition to several challenges by judicial review to the UK Government’s approach to Art 50 in England, there are two more recently commenced judicial review applications before the courts in Northern Ireland, focussing specifically on the position of the Northern Ireland Act. While there is currently less publicly-available material about those applications, it seems likely that, in addition to the arguments which are highlighted in the applications in London, there will be arguments around the particular structure of devolution in Northern Ireland.

A second independence referendum?

Further down the road, but perhaps not so much further, lies the real possibility of a second independence referendum in Scotland. While an early poll may not be the Scottish Government’s preferred timing, the First Minister, Nicola Sturgeon, has made clear that a second independence referendum is ‘on the table’. Graeme Cowie has posted a reminder that comes with a subset of constitutional law challenges of its own.

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher at Edinburgh University Law School.

(Suggested citation: K. Campbell, ‘Sand in the Gearbox: Devolution and Brexit’ U.K. Const. L. Blog (5th Sept 2016) (available at: http://ukconstitutionallaw.org)).