What does the 12-point Brexit plan mean for the UK constitution and sovereignty?

Big Ben
By David Wood, Executive Director, Policy Leadership and James Barbour, Director, Policy Leadership

20 January 2017

The Prime Minister has now set out the UK Government’s intentions in relation to its plans to exit the EU. At first glance it is difficult to disagree with any of her 12-points. 

But what lies beneath these high-level objectives and what issues are likely to prove most problematic in the forthcoming discussions? This article analyses the impact points 2 and 3 will have on the UK’s constitution and sovereignty.

Point 2. Control of our own laws

Adopting the body of existing EU law into UK law makes perfect sense to ensure a smooth legal transition on exit. It should also help facilitate any future trade deals with the EU.

The level of divergence from the date of exit and the speed at which any deviations occur through changes in UK legislation obviously remains to be seen – but these will be firmly within the control of the UK Government and Parliament.

The decision that the House of Parliament will vote on the final deal agreed with the EU before it is sanctioned, provides certainty in respecting the democratic process. It does, however, open up the possibility that the deal could be rejected. Where would this leave the UK, or indeed the EU?

Point 3. Strengthen the union

The need to ensure that the devolved administrations can contribute to the process of planning for the UK’s departure from the EU via the Joint Ministerial Committee on EU Negotiations is noted, but given the distance between the proposals outlined by the Scottish Government and those by the UK Government, there are undoubtedly many obstacles to consensus on a number of major issues.

Whilst gaining greater control over UK affairs will be welcomed by many, it does pose a number of questions. One of these relates to the repatriation of certain legal powers to the UK and whether this process will automatically lead to greater devolved powers for the devolved administrations or whether there will be more of a piecemeal approach.

Fishing policy is currently dealt with by the EU and on repatriation will in theory pass to the Scottish Government, as this is a devolved matter. But there might be certain powers that relate to devolved matters that the UK Government might not be keen to hand over responsibility for, at least in the first instance. The Prime Minister’s comments on this particular issue give some high-level comfort on this, though no detailed commitments at this stage:

“Part of that will mean working very carefully to ensure that – as powers are repatriated from Brussels back to Britain – the right powers are returned to Westminster, and the right powers are passed to the devolved administrations of Scotland, Wales and Northern Ireland.”

“Right powers” could be construed in different ways. One interpretation is that if a power is repatriated which relates to an area of policy which has already been devolved, then this power would then be automatically devolved to the respective administration. At the margins, though, there could be decisions to be made on whether specific repatriated powers are to be devolved, which could generate friction between the UK and devolved administrations. This is sure to be an area which will generate plenty of discussion and debate at the Joint Ministerial Committee meetings.

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