Devolution since the Brexit Referendum

Effects of UK Government actions since the Brexit referendum

The effective powers of the Scottish Parliament have been reduced without its agreement

It is fundamental to the devolution settlement – set out in both the Sewel Convention and the Scotland Act – that the powers of the Scottish Parliament and Government should not normally be changed without agreement.  Similarly, UK Ministers should not normally take powers to act in devolved areas without consent from the Parliament.  However, since 2016 both have happened on a number of occasions.

Most significantly, the UK Internal Market Act 2020 (IMA) makes fundamental changes to the effective powers of the Scottish Parliament.  Rules set elsewhere in the UK will apply in Scotland to imports from that part of the UK, whatever the equivalent rules in Scotland say.  In contrast to the flexibility of the European Single Market, which recognises both local factors and a balance of different policy objectives [10] – such as health – with economic activity [11], the IMA imposes a rigid requirement, in almost all cases, that standards set in other parts of the UK must automatically be accepted in Scotland, regardless of laws passed by the Scottish Parliament.  The result is that the Scottish Parliament is effectively prevented from setting the standards it wants for Scotland within areas of devolved responsibility. 

For example, Westminster has recently passed legislation to allow “precision breeding” (broadly gene editing) of plants and animals, including for human consumption, in England [12]: Under this legislation and the IMA, these products will have to be allowed into the Scottish market, even if they would otherwise be illegal under Scottish rules [13]. 

If the Scottish Parliament makes rules that affect what can be bought and sold in Scotland - as it recently did to ban single use plastic items [14] – these rules, unless excluded from the Act, will not apply to suppliers from elsewhere in the UK who can still sell their products in Scotland [15]. 

The Deposit Return Scheme demonstrates that the IMA also allows UK Ministers to try and alter policy decisions taken by the Scottish Parliament in legislating on matters clearly within devolved competence [16], and to effectively block the Parliament’s preferred outcome.  The UK Government was only prepared to exercise the powers it has conferred on itself to make an exclusion in a way that demanded important changes to the scheme legislated for by the Scottish Parliament [17].  The Scottish Parliament was therefore faced with the option of legislating in a way dictated by the UK Government, or not proceeding at all.

It took over a year to secure an exclusion from the IMA for the ban on single use plastics [18].  The process for an exclusion for the Deposit Return Scheme from the IMA began in 2021 [19] and only reached a conclusion in May 2023, which has resulted in further delay to the scheme until 2025 [20], as the UK Government only provided a partial and temporary exclusion from the IMA. 

The approach of the UK Government on the Deposit Return Scheme has not adhered to the agreed procedure for exclusions from the IMA [21], introducing uncertainty. 

There is no guarantee that future exclusions [22] will be secured as UK Ministers are, contrary to the devolution settlement and the agreed IMA procedures, asserting a role in deciding whether devolved laws, passed by the Scottish Parliament, are effective in Scotland.

Similarly, UK Ministers – and only UK Ministers – can decide whether to include whole sectors [23] - such as health, social care, transport, waste, water and sewage services - within the IMA principles, effectively changing the devolution settlement unilaterally without the consent of the Scottish Parliament.   

The Internal Market Act was passed despite a refusal of legislative consent from both the Scottish Parliament [25] and the Welsh Senedd [26].  This was the most wide-ranging constraint imposed on devolved competence since 1999, and undermines the Scottish Parliament’s ability to make laws for Scotland in devolved areas. The legislation has placed significant control over devolved matters in the hands of UK Ministers. 

The IMA also specifically reserved Subsidy Control, giving the UK Government responsibility for this important issue following EU exit.  Westminster has now passed its Subsidy Control Act 2022 giving UK Ministers substantial powers over the regulation of subsidies across the UK including for devolved matters such as agriculture and economic development [27].   The Scottish Parliament again refused legislative consent to the Subsidy Control Act [28], but the UK Government proceeded with the bill despite the views expressed by the Parliament. 

UK Ministers have taken powers to act in devolved areas

The Professional Qualifications Act 2021, Trade (Australia and New Zealand) Act 2023 and the Procurement Bill all give UK Ministers powers to implement international treaties in devolved areas without the agreement of the Scottish Government or Parliament. The provisions in the Professional Qualifications Act and the Trade (Australia and New Zealand) Act were again passed after the Scottish Parliament had expressly refused legislative consent [29] ,and UK Ministers can now make regulations affecting devolved matters without scrutiny by the Scottish Parliament [30].

These powers are important as Free Trade Agreements (FTAs) now consist of more than changes to reserved issues like tariffs and quotas for goods, and can cover devolved matters such as food standards, environmental standards, public procurement, recognition of professional qualifications and access to markets that supply public services. 

The UK Government remains solely responsible for concluding FTAs and other international agreements on behalf of the United Kingdom.  Implementation of any sections of international treaties, like FTAs, that are within devolved competence, is specifically devolved in the Scotland Act.  The MOU acknowledges the devolved governments’ interests in trade negotiations and the need for their involvement in such negotiations [31]. 

However, the Professional Qualifications Act allows the UK Government to impose an approach to implementing FTA rules on professional qualifications, including devolved professions (such as teachers, lawyers and social workers) without agreement by Scottish Ministers or scrutiny by the Scottish Parliament.  Professional qualifications standards can vary across the UK; an approach that fits one part of the country may not be suitable for another.  UK Ministers could agree through an FTA to standards (for example, teaching qualification requirements) not suitable for Scotland, and then impose these using the Act.

Other powers for UK Ministers to act in devolved areas are contained in the Levelling Up and Regeneration Bill, the Energy Bill, the Retained EU Law (Revocation and Reform) Bill and the Genetic Technology (Precision Breeding) Act 2023.  UK Ministers are not accountable to the Scottish Parliament, so under these powers can take decisions for devolved matters without democratic scrutiny by the Scottish Parliament.  The Scottish Parliament and Welsh Senedd have objected to such powers [32],  and refused legislative consent to UK bills on that basis [33].

UK Ministers are also proposing to take powers under the Strikes (Minimum Service Levels) Bill to set “minimum service levels” (MSLs) in a number of sectors (such as transport, education, fire and health), to be maintained during strike action. UK Ministers’ powers to set these MSLs include the devolved public services affected.  Despite robust opposition from the Scottish Government, UK Ministers can therefore take a role affecting operational matters in areas within devolved competence, risking an adverse impact to industrial relations in the Scottish public sector [34]. 

The Sewel Convention has been undermined

The Sewel Convention had been followed scrupulously by successive UK Governments of different parties until the European Union (Withdrawal) Act 2018, when the UK Government overruled the Scottish Parliament for the first time ever (to give UK Ministers a power to change the powers of the Parliament unilaterally, and by secondary legislation). 

The UK Government has now failed to respect the views of the Scottish Parliament on legislative consent on a total of nine occasions:

• EU (Withdrawal) Act 2018
• EU (Withdrawal Agreement) Act 2020
• EU Withdrawal (Future Relationship) Act 2020
• UK Internal Market Act 2020
• Professional Qualifications Act 2022
• Subsidy Control Act 2022
• Nationality and Borders Act 2022*
• Trade (Australia and New Zealand) Act 2023
• Genetic Technology (Precision Breeding) Act 2023*

(*  The UK Government did not consider consent was required for these bills, and did not seek legislative consent.)

There is the prospect of further overrides in the near future.  The Scottish Government is currently recommending that the Scottish Parliament withhold consent in full or in part from a number of bills, including the Levelling Up and Regeneration Bill and the Energy Bill. 

The Sewel Convention is vital in protecting the role of the Scottish Parliament and the other devolved legislatures in the UK’s constitutional system.  Under the doctrine of unlimited Westminster sovereignty [35], the UK Parliament always retains the power to legislate in devolved areas and to change the powers of the Scottish Parliament, or abolish it completely, without a further referendum [36].  For the Scottish Parliament to have any meaningful autonomy, and security within the UK’s constitutional arrangements, it is necessary for the Westminster Parliament to refrain from legislating in areas of devolved responsibility, or changing the powers of the devolved institutions, without their agreement.  This was provided by the Sewel Convention.

The consequences of the UK Government no longer considering itself bound by the convention can be seen from the Internal Market Act, which was passed without consent and is now operating to constrain the effective powers of the Scottish Parliament; precisely what the Sewel Convention was intended to prevent.  If the UK Government had observed the convention, the Act would not have been passed in its current form and the Scottish Parliament would have retained its powers to introduce important environmental measures, like the ban on single use plastics and the Deposit Return Scheme, without the delay caused by the UK Government.  It is also questionable whether the Minimum Unit Price for alcohol could be introduced under the rules in the Internal Market Act [37].

The UK Government has now indicated that it intends to proceed with the Retained EU Law (Revocation and Reform) Bill without legislative consent [38].  As well as repealing specific EU legal measures, this bill would give UK Ministers the power to repeal other EU measures within devolved competence without the agreement of the Scottish Government or Scottish Parliament.  Again, this is precisely what the Sewel Convention was intended to prevent. 

Moreover, concerns about the UK Government’s meaningful commitment to the Sewel Convention, and its respect for the Scottish Parliament, were increased by the very short period (around a working day) between seeking legislative consent for measures in the bill and its announcement of an intention to proceed without such agreement [39].

Committees of both the Scottish Parliament and Westminster have recognised that the actions of the UK Government in relation to the Sewel Convention have placed it under strain and that there is a case for reform [40].  However, the UK Government has not yet indicated any interest in implementing such proposals [41]. 

The current position therefore remains that confidence in the Sewel Convention has been undermined by events since 2018.  Mark Drakeford, First Minister of Wales, has said in evidence to the House of Lords [42]:

“When it became inconvenient for the UK Government to observe Sewel, they just went ahead and rode roughshod through it”

“More recently, I am afraid, the Sewel convention has withered on the vine”

The UK Government has blocked legislation passed by the Scottish Parliament

In January 2023 the UK Government used for the first time a power under the Scotland Act 1998 (known as a section 35 order) to prevent a bill passed by the Scottish Parliament– in this case with support from MSPs in all parties – becoming law.  As the section 35 order prevents the Scottish Parliament from legislating within its areas of competence, it was intended to be used as a last resort and only following discussions between the UK and Scottish Governments to resolve any problems.

This is set out in the MOU (see paragraph 27):

Although the UK Government is prepared to use these powers if necessary, it sees them very much as a matter of last resort. The UK Government and the administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or omission by the devolved administration having an adverse impact on non-devolved matters. If formal intervention should become necessary, the UK Government will whenever practicable inform the devolved administration of its intentions in sufficient time to enable that administration to make any representations it wishes, or take any remedial action

Again, this agreement is not legally binding, but relies on the governments to follow the agreed and understood processes.  Even though this was the first ever exercise of the power under section 35, the UK Government did not follow the steps set out in the MOU [43].

A concern now is that the UK Government may use its power under section 35 more regularly, in the same way that one bill passed without devolved consent under the Sewel Convention has been followed with repeated further examples [44], and that the section 35 power may in the future no longer be regarded by the UK Government as a “last resort” [45].

The Scottish Government has now initiated a judicial review of the use of the section 35 Order in the Court of Session [46]. The Scottish Government is taking this action to uphold the democratic will of the Scottish Parliament and to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution [47].

The Westminster Government’s choice for a hard Brexit had major adverse impacts on Scotland’s interests; the UK Government has also planned to repeal EU laws including in devolved areas

The Scottish Government and others have set out the adverse effects of Brexit on the interests of Scotland and the UK as a whole [48]. The Office for Budget Responsibility has estimated that Brexit will reduce long-run productivity by 4% compared with remaining in the EU [49]: this equates to a loss of around £100 billion in lost output and £40 billion in public revenues [50].  Scotland’s share, calculated by head of population, would be around £3.2 billion less each year. Scottish Government analysis has shown that the value of Scotland’s total trade in goods with the EU (imports plus exports) was 12% lower in 2021 than it otherwise would have been under continued EU membership [51]. Many Scottish businesses are facing additional costs due to Brexit in transportation, changing supply chains and increased administration [52]. 

The UK Government is now taking its Retained EU Law (Revocation and Reform) Bill through the UK Parliament.  The Bill seeks to repeal, reform or preserve an estimated 4,900 articles of retained EU law (or REUL), law that was agreed by EU member states, including the UK, during the UK’s membership.  These laws provide protections for the environment, for animal welfare, workers’ rights and food standards and allow businesses and industry to plan and trade effectively [53]. The Bill itself will repeal around six hundred instruments at the end of the year and allow UK Ministers to repeal more in the future with limited UK parliamentary scrutiny and input from Devolved Governments and the Scottish Parliament. These proposals apply to devolved matters such as food standards, pollution control and protections of the environment and nature [54]. 

Combined with the IMA, the UK Government’s approach to REUL, its view on the “regulatory burden” and divergence from the EU, could prevent the Scottish Parliament maintaining high standards, in alignment with EU, for devolved areas [55].

As recommended by the Scottish Government [56], the Scottish Parliament withheld its legislative consent to the bill [57], having already recorded its view that the bill “should…be scrapped by the UK Government” [58].

The UK Government is increasing its role in devolved policy and decisions on public funds, bypassing the Scottish Parliament

The devolution settlement provided for governmental functions and funding in devolved areas to transfer to the Scottish Government, which is accountable to the Scottish Parliament for these executive functions [59].  The UK Government has few residual functions, and no general oversight role, for devolved policy [60]. 

Despite this clear allocation of responsibilities in the Scotland Act, the UK Government is increasingly taking a role in devolved policy making and funding without the consent of the Scottish Parliament.

The UK Government’s “levelling up missions” [61] set targets for the whole UK for devolved matters such as education, health and policing.  These targets were set without the agreement of the Scottish Government or Parliament.  In the Levelling Up and Regeneration Bill, the UK Government is now legislating at Westminster for a UK Minister to report annually to Westminster on the delivery of these targets with no role for the Scottish Government or Parliament.  Under the devolution settlement, these are not matters for the UK Government.  It is for the Scottish Government – accountable to the democratically elected Scottish Parliament – to decide policies, priorities, targets, and resources for these devolved matters. 

The UK Internal Market Act also gave UK Ministers new powers to take decisions on public spending for devolved services in Scotland, bypassing the Scottish Government and Scottish Parliament.  To fund spending under these new powers, UK Ministers have retained money that would usually be allocated to the Scottish Parliament through normal funding arrangements (known as the Barnett formula).

Under the Barnett formula, the Scottish Parliament is allocated a proportion of increases in spending for devolved purposes in England (or England and Wales).  Decisions on spending are then made in Scotland [62], ensuring policy making, including funding decisions, is carried out in an integrated and coherent way, ensuring a consistent and joined up government programme, and good value for money [63]. The UK Government’s interventions in these areas, without the agreement of the Scottish Government and Parliament, risk duplication of effort, poor value for money and inconsistent policy objectives.

The UK Government’s Autumn 2020 Spending Review announced a £4 billion Levelling Up Fund for England, with consequential funding of £800 million for devolved governments “in the usual way”, that is through the Barnett Formula [64]. The Scottish Government would have expected to receive around £430 million of this funding.  Instead, without prior notice, the UK Government announced in the 2021 Spring Budget, that the Levelling Up Fund would be UK-wide, and retained the funds to be distributed to devolved governments to increase the Fund to £4.8 billion [65]. Approximately £97 million remains due to Scotland, with just under half of all local authorities yet to receive any support [66]. 

The UK Government has also failed to adequately replace the overall level of funding that was previously available under European Union funding schemes.  The Scottish Government has calculated that £183 million a year, or £549 million over a three year period, was required to replace EU Funding (based on funding for a 7 year programme, equivalent to the duration of EU programmes).  The UK Government allocation for Scotland of £212 million over three years falls far short of this calculation [67].

EU funding was distributed through the Scottish Government, whereas the UK Government now provides funding directly and solely to local authorities, risking national programmes coordinated by Scottish Government agencies.  For example, adult learning services across the UK are to be delivered by local authorities with an allocation decided by the UK Government [68], without taking account of the existing Adult Learning Strategy [69].

By contrast, working together on an agreed objective can allow each government to contribute from their areas of responsibility, expertise and resources in a coherent way.  Examples include the City Region Deals [70] and Green Freeports [71].  The UK and devolved governments have also published principles for common frameworks for matters within devolved competence [72], which emphasise the need for agreement.

These approaches are based on the need for negotiation and consensus [73] to recognise and respect the devolved responsibilities of the Scottish Government and Parliament.  They show there is an alternative to the centralising approach adopted by the UK Government in its other actions, one which maintains the purpose of devolution: a Scottish Government, responsible for devolved matters, accountable to the Scottish Parliament and through it to the people of Scotland. 

However, as the evidence set out in this paper shows, the underlying constitutional arrangements of the UK, especially Westminster’s claim to continuing sovereignty over all matters, will always make the position of devolved institutions and arrangements for intergovernmental relations subject to decisions made by the UK Government and Westminster Parliament [73].