Brexit - The devolution question

Publication | June 2016

Where existing EU regulation covers areas of devolved powers, what will the impact of Brexit be?
Following Brexit, would the UK government be able unilaterally to pass a Brexit-related legislation modifying devolved powers?
Could Brexit lead to another referendum on Scottish independence?
What impact would loss of EU funding have on Scotland, Wales and Northern Ireland?
How will Brexit affect Northern Ireland’s relationship with Republic of Ireland?

Where existing EU regulation covers areas of devolved powers, what will the impact of Brexit be?

UK Devolution has resulted in various powers being transferred to Scotland, Wales and Northern Ireland.

Many areas within the competence of the devolved nations’ parliaments/assemblies are currently covered by EU law, for example: agriculture, animal welfare and the environment. Following Brexit, it will be up to each devolved parliament/assembly to substitute its own arrangements and develop its own legislation and policies. This could result in increasing divergence within the legal landscape of the UK in such areas and although the UK government retains rights to legislate in devolved matters and could act to harmonise otherwise fragmented policies and legislation, this could come at a political cost within the devolved nations if it did so in opposition to the wishes of their populations.

On the other hand, for areas of EU law reserved to the UK Parliament under the devolution legislation, the consequences of the government retaining or replacing EU legislation following Brexit could probably be expected to affect the devolved nations equally.

Following Brexit, will the UK government be able unilaterally to pass Brexit-related legislation modifying devolved powers?

While the doctrine of parliamentary sovereignty allows the UK government to repeal or amend any of its legislation, changes to legislation affecting devolved powers are normally subject to the passing of a Legislative Consent Motion by the parliament concerned under what is known as the Sewel Convention. This convention arose as a matter of stated policy during the passage of the Scotland Act 1998 but applies equally to Wales and Northern Ireland.

Accordingly, without permission from the devolved parliaments of Scotland, Wales and Northern Ireland, unilateral passing of any Brexit-related legislation by the UK government modifying their powers and responsibilities could provoke constitutional difficulties.

Could Brexit lead to another referendum on Scottish independence?

At the time of the independence referendum in September 2014 it was widely believed that a vote to remain part of the UK would settle the issue for the foreseeable future.

However, notwithstanding the referendum decision for Scotland to stay in the UK, the Scottish National Party (SNP), which advocates strongly in favour of remaining within the EU, won 56 of 59 UK Parliament seats for Scotland in the May 2015 UK general election. The SNP manifesto made it clear that continued membership of the EU was “overwhelmingly” in Scotland’s interests, a position generally supported by subsequent opinion polling.

Immediately following the result of the EU referendum, there were calls from the Scottish National Party for another referendum on Scottish independence as, notwithstanding the overall vote to leave the European Union, 62 per cent of voters in Scotland voted to remain.

It remains to be seen how this will develop. In particular, it is unclear whether Scotland could become an independent country and remain a member of the EU, or whether it would have to establish independence and then apply for EU membership. Insofar as Scotland is required to apply for membership (as the Commission have previously indicated), it is likely that Scotland would be required to accept the euro and the Schengen Agreement, necessitating a hard border between England and Scotland.

What impact would loss of EU funding have on Scotland, Wales and Northern Ireland?

The devolved nations, especially Wales, have access to considerable funding from the EU from a variety of streams, including directly managed EU Funding Programmes and European Structural and Investment Funds. In some cases, EU funding is matched or supplemented by local funding, either from government or privately, and although the UK is currently a net contributor to the EU budget, Wales and Northern Ireland are net recipients. Non-EU countries such as Switzerland and Norway also contribute to EU funding for certain projects in which these countries participate.

As a result, Brexit could necessitate the UK government having to decide whether and how funds would be re-allocated to the devolved nations generally, and regions and projects specifically.

How will Brexit affect Northern Ireland’s relationship with Republic of Ireland?

Following the result of the EU referendum there were calls for a referendum on Northern Ireland's future and it remains to be seen how this will develop. The border between the Republic of Ireland and Northern Ireland is the UK’s only land border with an EU state – and indeed its only land border. Although it is not possible to predict the extent, if any, of changes to existing border arrangements in the event of a Brexit, the possibility of such changes does need to be considered in light of the close economic links between Northern Ireland and the Republic of Ireland and in particular by businesses that trade across this border.


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