Chapter 1: Introduction
Background
1.The impact of UK withdrawal from the EU on the UK’s devolution settlements is one of the most technically complex and politically contentious elements of the Brexit debate. The establishment in 1998–99 of the devolved institutions in Scotland, Wales and Northern Ireland transformed the UK’s political and constitutional landscape, with the result that the UK has changed beyond recognition since it joined the European Economic Community in 1973.
2.Furthermore, the devolution settlements are built upon UK membership of the EU. Brexit will remove one of the foundations of the devolution settlements, with potentially destabilising consequences. These are compounded by the contemporary political currents of support for the Union of the United Kingdom or for independence (or in the case of Northern Ireland, for a united Ireland) that continue to swirl, in different ways and to varying degrees, in each of the devolved jurisdictions.
3.Indeed, the different perceptions of nationhood in Scotland, Wales and Northern Ireland are a key reason why the devolution settlements are based on so-called ‘asymmetric devolution’—that is, devolution is designed differently in each of the devolved jurisdictions. Moreover, the devolution settlements have evolved rather than remaining static—the powers and institutional arrangements in Scotland, Wales and Northern Ireland have been repeatedly altered, leading to further asymmetry.
4.Added to this political complexity is the divisive nature of the Brexit referendum itself. As Table 1 sets out, the constituent parts of the UK voted differently—England and Wales voted to leave the EU, Scotland and Northern Ireland voted to remain.
Table 1: Breakdown of referendum result by constituent parts of the UK
Electorate |
Voter turnout % |
Votes for remain |
Votes for leave |
Vote % for remain |
Vote % for leave |
|
|
England (including Gibraltar) |
38,981,662 |
73.0 |
13,266,996 |
15,188,406 |
46.7 |
53.3 |
|
Scotland |
3,987,112 |
67.2 |
1,661,191 |
1,018,322 |
62.0 |
38.0 |
|
Wales |
2,270,272 |
71.7 |
772,347 |
854,572 |
47.5 |
52.5 |
|
Northern Ireland |
1,260,955 |
62.7 |
440,707 |
349,442 |
55.8 |
44.2 |
|
UK |
46,500,001 |
72.2 |
16,141,241 |
17,410,742 |
48.1 |
51.9 |
Source: The Electoral Commission, EU referendum results (2017): https://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/eu-referendum/electorate-and-count-information [accessed 5 July 2017]
5.The result was determined by a simple majority across the UK as a whole. Therefore the vote to leave the EU will take effect across all parts of the UK, notwithstanding the different results in Scotland and Northern Ireland.
6.This in turn has fed into the febrile political context surrounding the future of the UK. In March 2017 the Scottish Government, supported by the Scottish Parliament, announced its intention to seek to hold a second independence referendum, following on from that held in 2014, either in late 2018 or 2019—after the terms of the UK’s exit from the EU become clear, but before Brexit takes effect. This call was rebuffed by the UK Government on the grounds that, in the midst of the Brexit negotiations, “now is not the time” for a second referendum.1 In June, following the general election, the First Minister of Scotland, Rt Hon Nicola Sturgeon MSP, announced that the Scottish Government would not after all seek to introduce the legislation for an independence referendum immediately, but would rather return to the issue at the end of the negotiations.2
7.In Northern Ireland, the Brexit referendum exacerbated the divisions between the unionist and nationalist components of the Northern Ireland Executive. The Democratic Unionist Party campaigned to leave the EU, while Sinn Féin campaigned to remain. These divisions became more significant following the referendum result, as Sinn Féin called for a border poll on a united Ireland and the designation of ‘special status’ for Northern Ireland within the EU, while the DUP stressed that Northern Ireland must leave the EU along with the rest of the UK, and that anything else would undermine the Union. These tensions may have contributed to the breakdown of relations that led to the collapse of the Northern Ireland Executive in January 2017. Again, the result of the 2017 general election, and the subsequent agreement between the Conservative Party and the DUP, will have a significant impact.
8.Political leaders in Wales have expressed concern that, given that a majority of voters in Wales supported ‘leave’, and given that Wales does not present such immediate constitutional and political dilemmas for the UK Government as do Scotland and Northern Ireland, it may be overlooked in the Brexit negotiations.
9.Both the Scottish and Welsh Governments (the latter in conjunction with Plaid Cymru) have produced papers on Brexit and the respective implications for Scotland and Wales. Because of the political circumstances there, no such paper has been produced by the Northern Ireland Executive, beyond the letter written by the then First and deputy First Ministers shortly after the referendum.
10.Upon her appointment as Prime Minister in July 2016, Rt Hon Theresa May MP set out “the Government’s commitment to fully engaging with the [devolved governments] in the forthcoming negotiations about the UK’s exit from the European Union”.3 This commitment was restated in the Prime Minister’s January 2017 Lancaster House speech, when she committed to “working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom”. With this in mind, the Government has set up a Joint Ministerial Committee on EU Negotiations, “so ministers from each of the UK’s devolved administrations can contribute to the process of planning for our departure from the European Union”.4 Yet opinions on whether the UK Government has done enough to take into account the views and concerns of the devolved administrations are divided.
This report
11.The focus of this inquiry has been, from the outset, on the devolved territories, and on how their interests and concerns can be taken into account in the Brexit process. This emphasis highlights the anomalous constitutional position of England. Despite (or perhaps because of) the fact that England comprises 84% of the population of the UK,5 there is no devolution settlement in England. England remains governed by the UK Government, and is represented in the UK Parliament. It follows that, notwithstanding the limited reform of House of Commons procedures that gave effect to ‘English Votes for English Laws’, there is no single institution that can represent or speak for England.
12.Nor is England itself homogeneous. London has a distinctive identity and a strong interest in Brexit, and the Mayor of London and the London Assembly exercise powers that may be termed quasi-devolved—but London cannot be equated in status with the nations of the UK. Beyond London, we also acknowledge the distinct (and sometimes contrasting) interests and concerns of the regions of England, from rural Cornwall to the industrial North East. In some cases the priorities of these regions overlap with those of the devolved nations, and in others they differ. But these voices have not been heard in this inquiry.
13.Instead, our intention in this report is to draw the attention of audiences throughout the UK and in the EU to the implications of Brexit for the devolution settlements. Although we have not set out to propose modifications to the devolution settlements, we have commented on the political and constitutional position of Scotland, Wales and Northern Ireland; on the process of repatriation of powers from the EU and the implications for the devolved institutions; on the balance between powers that are devolved and are exercised centrally; on the role of the devolved institutions in connection to the Repeal Bill and connected legislation; on the effectiveness of the engagement and consultation mechanisms between Whitehall, Westminster and the devolved institutions; and on the desirability, and likelihood, of differential arrangements for UK withdrawal that would respect the priorities of the nations and regions of the UK, while respecting the overall vote to leave.
14.With regard to Scotland and Wales, we heard evidence from their respective Governments, the leaders and representatives of opposition parties, a former First Minister and Deputy First Minister of Scotland, former leaders of political parties, former Secretaries of State, and from academic and legal experts. The Committee also visited Edinburgh and Cardiff, where it heard evidence from politicians, academics, legal experts and representatives of business, industry and sectors likely to be most affected by Brexit.
15.Given the political situation in Northern Ireland, it was not possible to take evidence from the Northern Ireland Executive or from leaders of the political parties at Stormont in the context of this new inquiry. Nevertheless, the particular importance that we attach to the implications of Brexit for Northern Ireland was demonstrated by our earlier report on Brexit: UK-Irish relations, which focused heavily on Northern Ireland. That report took account of evidence heard in autumn 2016 in London and on a visit to Belfast and Dublin. This report builds upon the evidence received and the conclusions which we drew in that report.
16.In that context, the Committee heard evidence from a panel of former Northern Ireland party leaders, including a former First Minister and deputy First Minister, from representatives of the DUP and the SDLP, from a former Secretary of State for Northern Ireland, and from an academic expert on Northern Ireland. We have also taken account of written evidence received from witnesses familiar both with the situation in Northern Ireland, and with the devolution settlements more broadly.
17.Our findings are based on evidence received during February and March 2017. The Committee was due to hear evidence from the Secretary of State for Exiting the European Union, Rt Hon David Davis MP, on 22 March 2017. However, this session was postponed because of the Westminster terrorist attack that day, and efforts to reschedule the meeting were forestalled by the general election, which also delayed publication of the report. We finally met the Secretary of State on 11 July, the same day the report was agreed, and we have briefly quoted from his evidence in this report. We have also sought to reflect other relevant developments, but we have not been able to comment on the Government’s Repeal Bill, which was published just after our report was agreed.
18.The Committee has throughout taken account of the important work undertaken by the House of Lords Constitution Committee, not least in its 2016 report on The Union and devolution6 and its 2017 report on The ‘Great Repeal Bill’ and delegated powers.7
19.Chapter 2 considers over-arching issues, including the nature of devolution in the UK. The next three chapters focus on the distinctive issues affecting Northern Ireland, Wales and Scotland. Chapters 6 and 7 identify the issues in common that link the three devolved nations, and address the process and policy implications of the repatriation of powers from Brussels, the involvement of the devolved institutions in the Repeal Bill, and the process of intergovernmental consultation and interparliamentary engagement between London and the devolved institutions.
20.We make this report for debate.
1 ITV, ‘’Now is not the time’: May rules out Sturgeon’s call for IndyRef2’ (16 March 2017): http://www.itv.com/news/2017–03-16/may-rules-out-sturgeons-call-for-second-scottish-referendum-saying-now-is-not-the-time/ [accessed 20 June 2017]
2 Scottish Parliament Official Report, 27 June 2017: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11035 [accessed 10 July 2017]
3 Government press release, Prime Minister to visit Scotland and underline commitment to “preserving this special union”, 15 July 2016: https://www.gov.uk/government/news/prime-minister-to-visit-scotland-and-underline-commitment-to-preserving-this-special-union [accessed 20 June 2017]
4 Rt Hon Theresa May MP, speech on ‘The Government’s negotiating objectives for exiting the EU’, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 20 June 2017]
5 Office for National Statistics, Population Estimates for UK, England and Wales, Scotland and Northern Ireland: mid-2016 (22 June 2017): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/annualmidyearpopulationestimates/latest [accessed 5 July 2017]
6 Constitution Committee, The Union and devolution (10th Report, Session 2015–16, HL Paper 149)
7 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123)