James Brokenshire has solemnly warned that if Stormont is to receive new powers as result of Brexit, power sharing must be restored. This blatantly original statement puts him in line for a Nobel Peace Prize or a slot on Pointless. It’s just the sort of threat that will have them rushing to the conference table next Monday. It puts a small cart before a big horse that is out there somewhere roaming the range.
Who cares about powers when what really matters is respect and equality? Alright then, what new powers anyway? These are powers over agriculture and fisheries and the environment that Theresa May was reported as being about to offer Nicola Sturgeon last week to soften the impact of her “this is not the time” veto on Indyref2. – but in the end she didn’t. Agriculture really matters to Northern Ireland because it is one industry that is substantially integrated with the south. The existing subsidy regime ends in 2020 and different pricing mechanisms north and south thereafter would be seriously damaging in NI..
The UK government are deferring a decision on the powers because only they at the moment could negotiate new farm produce deals with other countries post-Brexit. Scotland and Wales are accusing Westminster of making a power grab of doubtful legality. The issues are clearly explained by Prof Michael Keating of Scotland’s Centre on Constitutional Change
The UK Government has said on several occasions that no ‘decisions’ currently taken at the devolved level will be recentralized in London. In its new White Paper it even suggests that the devolved bodies will gain new powers. Yet it also says that policy in these fields will be governed by UK frameworks. Does this represent more devolution, as the UK Government claims, or a taking back of powers, as the Scottish Government complains?
The UK Government position has not been set out in any detail but it appears to be based on the proposition that, at present, the devolved bodies do not make policy in these fields; they merely implement EU policies. The devolved governments argue that the powers belong to them and that they, like the UK itself, have given them to Europe as part of our EU membership. So, they say, the powers are devolved in UK domestic law, and Westminster has no right to take them back unilaterally.
Such a move would breach the Sewel Convention which, in its broader meaning, does not allow unilateral changes in the settlement. Legally, this may be of no importance, as the Supreme Court, in its judgment in the Miller case, ruled that the Sewel Convention is not legally enforceable and is a mere ‘political’ agreement. Politically, however, such a unilateral move would be unprecedented in the history of devolution and would set an important precedent.
On the other hand, there are practical arguments for some UK-wide frameworks. Agriculture, fisheries and environment are mostly devolved, but agriculture and fisheries trade and international agreements in all three fields are reserved. It is not possible to make a clear distinction between the internal and external aspects. Any free trade agreement on agriculture would have to include provisions on agricultural support and subsidies, as would UK membership of the World Trade Organization. Free trade in agriculture within the UK would require agreement on subsidies to ensure a level playing field. The external effects of environmental rules imply both international and intra-UK cooperation.
Frameworks could be constructed in a number of ways. Westminster could amend the devolution acts to reserve the necessary powers. This would be provocative and give the devolved governments a clear grievance. Alternatively there might be new, transversal laws, laying down general provisions about support regimes or environmental standards. If these in practice took powers back to Westminster, they would in effect alter the devolution acts and raise the question of the Sewel Convention. Another mechanism could be to use the funding of the relevant policies (which does not automatically revert to the devolved level) to secure compliance. Then there is the Welsh proposal for negotiation among the four governments on the basis of equality and consensus. The UK Government has given no guidance on which mechanism it will use, presumably because it does not yet know.