“Brexit has the potential to test the UK’s constitutional settlement, legal framework, political process and bureaucratic capacities to their limits – and possibly beyond..
And they suggest the repatriation of decision-making in key policy areas including agriculture, the environment and higher education to Britain from Brussels could affect the balance of power between Westminster and the devolved parliaments – another major constitutional headache for politicians.
In the section of its report on the devolved nations, they have no magic bullet..
The least constitutionally disruptive means by which the divergent policy interests of the devolved nations could be accommodated within the current state structure would be for Scotland, Northern Ireland and Wales to take advantage of the repatriation of competences, along with existing powers, and to shadow EU, rather than UK policies in some fields.
A step on from this is the possibility that Scotland and Northern Ireland might remain part of the EU, at least for some purposes, while remaining within the UK. All sides are agreed that closing the Irish border would be a serious mistake and that some accommodation will have to be made. This could take the form of keeping the historic common travel area and some crossborder institutions. It is difficult, however, to envisage Northern Ireland being within the Single Market and the rest of the UK being outside it without controls on trade in goods and services between Northern Ireland and Great Britain.
The most radical option, permitting those nations which voted for remain to do so, whilst the rest of the UK leaves, is secession from the UK. Scotland would become independent, and perhaps either continue as a successor state to the UK, or more likely join as a new member. Northern Ireland could retain membership through unification with the Republic.
There is no clear resolution to any of these issues but Brexit will have a big impact on devolution. It may lead to a recentralisation as the UK reconstitutes itself as a sovereign polity; or to further decentralisation with the devolution of EU competences. In either case, the process will be difficult and controversial.
In the Indo, former taosieach John Bruton discusses the particular complexities that relate to Ireland when the UK and the EU diverge. As we have already noted, this calls for a beefing up of the British-Irish institutions of the GFA. He also recommends a special “Ireland clause” for the “Great Repeal Bill.”
The problem for Ireland is that the Great Repeal Bill will also provide a mechanism whereby the UK can then quietly repeal, or amend, these EU laws, one by one, without reference to the EU.
This will probably be done by ministerial orders, which cannot be amended, and are rarely even debated.
If these orders change the standards to be met on the UK market from those on the Irish/ EU market, this could erect an overnight and costly barrier to trade within Ireland
Of course, it will take many years for UK ministers to go through every directive and regulation, every amendment to them, and every court judgment interpreting them, and then to decide on which to keep and which to replace.
But all this could be done behind closed doors, under pressure from special interests.
And then the change could be made by ministerial order, with no discussion with Ireland or with other EU countries, whose businesses could be affected.
Mrs May has promised this process will be subject to “full scrutiny and parliamentary debate”, but this seems impractical because so many EU laws are involved.
And the scrutiny and debate, if any, will be confined to Westminster.
She said nothing about scrutiny in the parliament in Edinburgh, or in the assemblies in Belfast or Cardiff, let alone any consultation with Dublin.
So much for 60 years’ worth of past EU laws, what about new EU laws after the UK has left? If the UK decides not to amend its laws in line with the new EU versions, this will immediately create new barriers to trade. This problem will get more and more severe as time goes on.
The British/Irish Intergovernmental Conference, set up under the Good Friday Agreement, will have to take this problem on board.
It will have to meet very often indeed to keep up with the rapidly moving EU regulatory agenda. At the moment, I fear it is not equipped for the task.
A third problem will be divergences in the interpretation of the meaning of EU/UK laws between EU and UK judges, even where the texts are the same.
The UK Supreme Court will probably interpret some laws differently from the way the ECJ will interpret them. There are differences in judicial philosophy between the common and civil law traditions.
So the exact same regulation could be interpreted in one way in the North and in another way in the Republic.
What can we do to prevent all these disruptive and costly trends?
In my testimony in the House of Lords, I suggested that the proposed ‘Great Repeal Bill’ contain a special ‘Ireland clause’, which would require any UK minister who is contemplating using its powers to make any unilateral UK amendment to an existing EU/UK law, to give public notice of his intention to do so, and formally consult both the Irish Government, and the Northern Ireland Assembly.