Why should Brexit (or Ukexit) affect the UK’s internal arrangements, and what is Westminster’s response?

Brexit and the new devolution crisis: what are the issues?

Why should Brexit affect the UK’s internal arrangements?

The last week has seen a flurry of interventions by Scotland, Wales and Northern Ireland arguing for a greater say in how the UK government conducts negotiations to leave the European Union.

In the supreme court, Northern Ireland QCs and Scotland’s lord advocate argued it was not only MPs and peers in Westminster who deserved consultation, but also devolved legislatures in Stormont and Edinburgh.

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Meanwhile, Labour’s leader in Scotland, Kezia Dugdale, wrote in the Guardian of the need for a “people’s constitutional convention” to re-establish the UK for a new age. She gave a speech calling for many EU powers to be repatriated to Edinburgh rather than Westminster.

Politically, this all reflects the referendum’s varying results up and down the country. “We are a united Kingdom in name only,” said the London Labour MP and remain campaigner Chuka Umunna.

Legally, Brexit has opened a constitutional can of worms. “Britain has two sovereignty problems: one relating to the internal sovereignty of Westminster over the regions of the United Kingdom, and the other external, the relationship between Westminster and the European institutions,” says Sir David Edward, a Scottish former judge at the European court of justice.

Shouldn’t it be called Ukexit?

Even the name is not agreed upon. Political scientist Brendan O’Leary has argued Brexit is a logically impossible misnomer since it is not Britain trying to leave the EU, but the United Kingdom of Great Britain and Northern Ireland.

It is less catchy than Brexit – which caught on after Greece’s threatened departure from the EU became known as Grexit – but he calls for the term Ukexit to be used for more than just pedantic reasons.

“To use Brexit is to do verbal violence to the nature of the UK, which is a double union, not a British nation state,” wrote O’Leary in a provocative paper discussing the unlikely option of Northern Ireland and Scotland possibly staying inside both the EU and UK.

Isn’t there a law about all this?

In the absence of a single written constitution, many of the answers to these questions lie in the interpretation of case law, some of it going back centuries. As Dominic Chambers QC told the supreme court on Wednesday, the doctrine of parliamentary sovereignty was “forged on the battlefields of the 17th century in the [English civil war] between crown and parliament”.

But devolution that began under Tony Blair has established a growing body of more recent law, with significant consequences. A 2016 amendment to the 1998 Scotland Act, for example, establishes that the Scottish parliament and government are a permanent part of the UK constitutional arrangement. The so-called Sewel convention, which recognises that the UK shall not normally legislate with respect to devolved matters without consent of the Scottish parliament, is now statute as well as good manners.

Richard Gordon QC, for the Welsh government, told the court: “The force of the Sewel convention is not its legal enforceability but that it’s a dialogue between legislatures.”

Similarly, in Northern Ireland, which lost devolution powers and gained EU membership at the same time in 1972-3, has since had much of its independent relationship with Brussels enshrined by referendums leading up to the Good Friday agreement, and by the UN-recognised British Irish agreement and the Northern Ireland Act of 1998.

“You can’t get away from the fact that the UK now has a partially written constitution in the form of statutes, and making it work requires respect on all sides,” explained Sir David Edward in a panel discussion at City University law school this week.

What is Westminster’s response?

So far, the Tory government in Westminster is showing limited patience for any notion of further complicating its already difficult negotiations with the EU.

The chancellor, Philip Hammond, a cabinet moderate, was recently dispatched north from London to rule out any prospect of Scotland winning special concessions on trade or immigration in the Brexit deal.

“This is a United Kingdom issue and the will of the people of the United Kingdom was to leave,” he told reporters shortly before holding talks with the first minister, Nicola Sturgeon. “We’re clear that we can’t have a different deal or a different outcome for different parts of the United Kingdom.”

But with the possibility that the supreme court may add Edinburgh and Stormont to the list of parliaments that need to be consulted before article 50 is invoked, this may not be a sustainable position.

“The real problem is that cohesion of the United Kingdom is uncertain and treading softly on eggshells is what is required,” said Edward at City Law. “There is no point in making big, noisy declarations.”

Where is the rub?

As James Wolffe QC, Scotland’s lord advocate, told the supreme court, there is little realistic chance of wielding a veto over Brexit. It is more a question of being consulted.

Some see this as a chance to push for a “soft” Brexit where the UK remains in the single market, but another set of bargaining revolves around devolved powers that are currently shared between the EU, Westminster and national executives.

The Scottish government, for example, is responsible for agriculture, forestries and fisheries in conjunction with the EU, not London.

“The most interesting question concerns exclusive and shared EU competencies that will be repatriated by Brexit, but are they to be exercised by Scotland as devolved competencies?” asked Edward. “Does it mean that when powers are repatriated in relation to fisheries, that the Scottish government and parliament acquire exclusive competencies, because none of them are reserved, or will the UK be able to re-reserve some of the competencies that are coming back?”

A battle over fish may seem an anti-climactic end to the constitutional crisis, but it hints at new ways for Scotland to gain power over its own affairs without necessarily going down the route of a second independence referendum.