Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
The EU referendum campaign saw the formation of a strange coalition of Scottish Nationalists and Pro-EU Tory Unionists all arguing that a vote for Brexit could lead to the end of the United Kingdom. Three months later and polls show that that the SNP’s dreams of a Brexit boost for independence have flopped and unionists have unsurprisingly ceased to argue the UK is in danger.
Such a reversal was always likely (as I argued here). Given that a majority of Scots exports are to the rest of the UK it makes little economic sense for the SNP to argue to leave a post-Brexit UK in order to attempt to join the EU. While Brexit has made the case for Scottish independence more difficult, Nicola Sturgeon, the smart politician she is, must by now also realise she has to make an accommodation with the 38% of Scots who voted to Leave.
Scottish nationalist’s demands for involvement in the Brexit process have so far been extravagant, a veto and demands to stay in the single market (by contrast Wales has ruled out the single market). These claims will come to nothing, but key questions remain unanswered. Primarily whether the SNP will demand that Scotland (rather than the UK) gains competence over all the EU powers they were recently happy to see exercised in Brussels.
These new powers include important areas such as fishing, agriculture, UK trade policy and the environment. These policies all come with implications for who will fund them and thus the Barnett formula. This will become evident as the EU Repeal Bill wends its ways through the UK Parliament as the Government’s legal defence to the recent Article 50 case alludes (s 49 of it here).
A quirk of the devolution settlements in Scotland and Northern Ireland is that all powers were devolved except for a long list of “reserved powers”. Under the 1998 Scotland Act it was sensibly prescribed that Scotland would have to abide by EU law, so that the UK could meet its obligations vis a vi Scotland. However, EU policy areas were however not specifically prescribed as reserved to the UK meaning that by default areas will fall by default into the hands of the Scottish and Northern Irish Governments. If it is not the intention of Westminster to devolve these powers they will need to amend the Scotland Act in the Repeal Bill.
In addition to important policy areas such as fisheries and agriculture the UK will need, like the EU before it, to retain powers over areas needed to sign foreign trade agreements. The Scotland Act forced Scotland to abide by EU law. If the UK is in future to sign its own trade agreements, Westminster will need to be able to deliver on its commitments to its trading partners in areas such as Agricultural subsidies, Fisheries, Government procurement. This has an impact on the nature of powers that can be devolved.
For example, during Canada’s negotiations with the EU the EU rightly asked if Canada’s provinces would also open up their markets and abide by the regulations and commitments the Federal Government was minded to agree on their behalf. If Scotland were to assume more powers from the EU there would be a similar need to involve Scotland in the UK’s future trade agreements. Likewise if the entirety of EU fisheries policy were devolved the UK would limit its ability to sign binding agreements with neighbouring states on fish catches – only sovereign states can enter treaties.
It is no surprise that when Tony Blair drew up the 1998 Scotland Act following devolution he did not anticipate that the UK would ever leave the EU, however the peculiar way the Act was drafted makes an early decision necessary. So what should we do?
I was never a fan of devolution, I voted and campaigned against it, however it is a fact. The question is where we go from here with the EU policy areas. Here is a rundown of the main decisions:
Scotland already has some responsibility in agriculture within the overall EU Common Agricultural Policy. It is likely that the UK will wish to maintain some form of UK policy so as to be able to abide by its WTO commitments, strike free trade agreements and maintain a level playing field within the UK. If it remains a UK policy area the UK government will be responsible for paying for it. Therefore while it may be possible to devolve some aspects of agriculture it is unlikely to be wholesale.
Likewise the UK is likely to wish to retain a single fisheries policy so as to be able to meet commitments and sign treaties with other parties. There is also no clearly defined maritime boundary between England and Scotland when it comes to fishing grounds. While the UK will probably wish to maintain a unified policy, Scotland with 60 per cent of the UK’s fisheries must be a part of the process. In order to win over support for Brexit the UK should be able to find a way to involve Scotland in the setting of fisheries policy and potentially devolve some more responsibility over inshore fisheries and administration within an overall policy.
EU Environment policy covers the whole climate change policy and has big implications for energy policy and consumer costs. Given the UK will abide by its international commitments, such as the Paris agreement, it seems difficult to see how separate climate change policies could exist in the UK, however there may be some scope to give Scotland more responsibility such as for new renewable projects.
EU Regional policy – funding
The EU had a large and expensive regional policy financed out of the UK’s contributions. Post Brexit the UK will regain its funds and would have to decide how to spend them, including whether to implement a UK regional policy. As always there will be implications for the Barnett formula. This will primarily be a matter for the UK government in consultation.
Brexit, if handled well, gives the UK government a great opportunity to show, contrary to the alarmist claims, that the devolved administrations will be the beneficiaries of not just a more vibrant UK but new responsibilities, moneys and enhanced influence. The SNP may have already passed its high watermark but to compound it Brexit has made their dream of independence less viable. The new EU Repeal Bill will need to address the issues of Scotland and the devolved administrations in a thoughtful and responsible manner balancing devolution with ensuring that the UK can become again a force for free trade. The dynamics of the UK’s devolution settlement have changed again, and this time hopefully for the better.