Nicola McEwen

It’s well known that Scots voted by a clear majority for the UK to remain within the EU. That Scotland faced the prospect of “being taken out of the EU against our will” was, according to the First Minister the morning after the vote, both “democratically unacceptable” and a “significant and a material change of the circumstances in which Scotland voted against independence in 2014.” The independence issue has been bubbling below the surface ever since, but the challenges Brexit poses for Scottish devolution have presented the more pressing concerns.


Powers bonanza or power grab?

The Secretary of State for Scotland, among others, has claimed that Brexit will enhance significantly the powers of the Scottish Parliament. The Scottish Government accused its UK counterpart of using Brexit to carry out a raid on the powers of the devolved institutions.

These competing perspectives emerged during the passage of the EU (Withdrawal) legislation. Both the Scottish Government and the Welsh Government objected to the restrictions it placed on the devolved institutions’ authority to amend repatriated competences (‘retained EU law’) in areas like fishing, agriculture and the environment that fall within their remit. Working together, the two governments used ‘soft power’ to force changes to the legislation.

However, the Act still gives the UK Government the legal authority to introduce regulations (known as ‘section 12 regulations’) that would ‘freeze’ devolved powers to allow for the development of UK common frameworks. Despite the UK Government’s assurances to seek agreement, the legislation lends it the authority to proceed without it, even in the face of an explicit refusal of consent. This represented, in the words of Mike Russell, then Minister for UK Negotiations on Scotland's Place in Europe, an ‘unprecedented, unequal and unacceptable new legislative constraint’. By a clear majority, excluding only the Conservatives, the Scottish Parliament refused consent for the Withdrawal legislation. The legislation was passed anyway.

The Scottish Parliament’s alternative ‘continuity’ legislation was referred by the UK Government to the Supreme Court. The Court ruled that the bill was largely within the powers of the Scottish Parliament at the time that it was passed, but much of it was rendered beyond its powers by the protected status given to the EU (Withdrawal) Act.

The entire episode has undermined one of the founding principles of devolution: that the UK parliament will not normally legislate in areas of devolved competence or change devolved powers without the consent of the devolved institutions.


Towards Collaborative Governance?

There is no doubt that Brexit is placing strains on the relationship between the Scottish and UK Governments. But beneath the public spats, there is a lot of cooperation.

So far, no section 12 regulations have been introduced to ‘freeze’ devolved powers, and none are anticipated in the foreseeable future. Civil servants from each of the UK’s administrations have been working intensively to agree where new UK common frameworks might be needed to replace EU frameworks, and how these might be governed. These negotiations are founded on agreed principles, including ensuring ‘the functioning of the UK internal market’ and respect for the devolution settlements and democratic accountability of the devolved legislatures. These principles might be difficult to reconcile once proposals move from discussions among officials to critical decisions between ministers.

Whatever form it eventually takes, Brexit adds new complexities to the UK’s system of multi-level government. Rather than conceiving it (wrongly, in my view) as a system which creates clear distinctions between the powers of each level of government, Brexit creates more overlaps and interconnections, opening up space for shared powers. Each of the administrations is engaged in a joint review of the principles and processes of intergovernmental relations, which many commentators, my colleagues and I included, have regarded as not fit for purpose in a post-Brexit landscape.

If reforms are to be effective, rebuild trust and be regarded as legitimate by all governments, collaboration and mutual consent will need to go hand in hand.


Professor Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh, and a Research Leader with the UK in a Changing Europe initiative. She is currently seconded part-time to the Scottish Government as an expert advisor on intergovernmental relations. This blog is written in a personal capacity.


This article is part of an ongoing blog series ‘Brexit Countdown’ by the Political Studies Association (PSA) and Political Studies Association of Ireland (PSAI).  


To read the entire series, please see below:

  1. What’s the likely impact of Brexit on Higher Education in Northern Ireland? by Cathy Gormley-Heenan
  2. Brexit and a second Scottish Independence Referendum: What happens next? by Margaret Arnott
  3. What's the difference? British and Irish attitudes towards the EU by Kathryn Simpson
  4. Brexit and devolution in Wales by Roger Awan-Scully
  5. The Backstop: a ‘flexible and imaginative’ solution? by David Phinnemore
  6. Culture, the arts and Brexit by Kate Mattocks
  7. Brexit and implications for Scottish Devolution by Nicola McEwen
  8. Is Brexit propelling Northern Ireland towards Irish unity? by Katy Hayward
  9. Blair and Brexit by John O'Brennan
  10. The looming possibility of a retaliatory relationship between the UK and the EU by Will Phelan
  11. Brexit: Ethnopolitical dimension by Timofey Agarin
  12. Irish-British relations: Preparing for momentous change by Paul Gillespie
  13. Brexit, gender and Northern Ireland: Changing the state-society relationship by Yvonne Galligan
  14. Beyond the backstop: the DUP’s role in Brexit by Jon Tonge
  15. Brexit, political parties & power-sharing in Northern Ireland by Sophie Whiting
  16. Brexit and devolution in England: What's at stake by Arianna Giovannini
  17. What do people in Northern Ireland think about Brexit? by Jamie Pow and John Garry
  18. Brexit, diplomacy and defense by Ben Tonra
  19. Empathy, minorities and Brexit by Richard English
  20. Young people and Brexit: Not all that we think by Emily Rainsford
  21. Is the Backstop a Red Line Too Far? by Etain Tannam
  22. The UK's view of the EU by Simon Usherwood
  23. The invidious impact of Brexit on Ireland's policy landscapes by Mary C. Murphy
  24. Looking into the abyss: A European perspective by Brigid Laffan
  25. Britain after Brexit by Anand Menon
  26. Brexit as Political Irony by Feargal Cochrane
  27. The Brexit Countdown Series: Some concluding thoughts, and an appeal by Muiris MacCarthaigh and Feargal Cochrane