The Withdrawal Agreement and Devolution

Disagreements between the UK, Welsh and Scottish Governments are about more than inter-party rivalry, says Nicola McEwen, they reflect a very real disagreement about how policy can be made - and by whom. 
It is statement of the obvious to say that the fate of the draft Withdrawal Agreement is in some doubt. In addition to opposition from pro-Brexit (and some pro-Remain) Conservatives, the opposition parties appear united in their resolve to vote against the agreement when it comes to Parliament. 
For a while, it looked like they may be joined by the 13-strong bloc of Scottish Conservatives. All of them – including the Secretary of State for Scotland, David Mundell – had signed a letter sent to the Prime Minister on Wednesday, warning: 
“…we could not support an agreement with the EU that would prevent the UK from independently negotiating access and quota shares … access and quota shares cannot be included in the Future Economic Partnership”. 
Despite the leadership’s pro-Remain position in the referendum, the Scottish Conservatives appear to have gone full Brexit. But having marched the troops up to the top of the hill, they promptly marched back down again, seemingly reassured by the PM that the UK would be leaving the Common Fisheries Policy to become an independent coastal state in 2020, with sovereignty over fishing rights in UK territorial waters. But fishing will feature in the trade negotiations to come. The outline of the Political Declaration on the future UK-EU relationship says as much:
“Within the context of the overall economic partnership, establishment of a new fisheries agreement on… access to waters and quota shares, to be in place in time to be used for determining fishing opportunities for the first year after the transition period.” (emphasis added). 
The Withdrawal Agreement has met with a sharp response from within the devolved governments. The Scottish First Minister, Nicola Sturgeon, described the deal as the ‘worst of all possible worlds’ by taking Scotland out of the EU single market while leaving Northern Ireland effectively in it. The Welsh First Minister, Carwyn Jones, complained about a lack of consultation with the devolved governments on the details of the Agreement, despite it impinging on devolved competence. Building on the bi-partisan approach they have forged during the Brexit process, the two leaders wrote jointly to the Prime Minister complaining of a lack of meaningful engagement with the devolved governments. They called for an urgent meeting of the Joint Ministerial Committee to discussed the detail of the Agreement and the political declaration before it is finalised. 
There is good reason for the two governments to want a say. Commitments made in the Withdrawal Agreement will have both direct and indirect effects for the responsibilities of the devolved governments in Scotland and Wales. The Protocol on Ireland/Northern Ireland – the backstop to be introduced in the absence of a negotiated deal on the future relationship – includes a single customs area for the UK and the EU, but effectively embeds Northern Ireland within the EU single market, an outcome the Scottish Government has argued puts it at a competitive disadvantage. The backstop agreement also commits the UK to maintain minimum common standards ‘with the aim of ensuring the proper functioning of the single customs territory’, including in large swathes of environmental policies, employment policies and state aid, with independent oversight and enforcement. Many of the areas noted in the Agreement fall within devolved competence, yet neither the Agreement nor the political declaration make even passing reference to Scotland or Wales.  
It is not just the lack of trust or party allegiance that inhibits meaningful intergovernmental negotiation. At the heart of these intergovernmental tensions lies a divergent view on the nature of the Union. The First Ministers’ letter to the PM notes: “we continue to make the point at every opportunity that the UK Government cannot agree the UK position on the Withdrawal Agreement or the future relationship with the EU27 without the input of the devolved administrations.” This reflects their firm view that, when it comes to EU relations, there is a clear difference between the UK position and the UK Government position. But this is not the prevailing view within the UK Government, who regard themselves as solely responsible for both EU relations – which are reserved in the devolution settlements – and matters that affect the UK as a whole. 
Such a strict distinction between reserved and devolved competence has never made sense in the day to day world of public policy-making, and the interdependence between the two governmental spheres is set to increase once the UK leaves the EU. The continued lack of shared understanding about the status and role of the devolved governments does not bode well for the ongoing efforts to reform the UK’s system of territorial governance in preparation for life outside the EU.

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Nicola McEwen's picture
post by Nicola McEwen
University of Edinburgh
19th November 2018
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