E: Bulletin March: Devolution Settlements Still The "News"



Today May will outline what “five tests” she will set out that will guide her when she is negotiating a future trade relationship with the EU. Expect a Twitter storm but probably more of a breeze on detail. This completes a week  dominated, again, by Brexit.

It started with the publication of the European Union’s draft withdrawal agreement outlining arrangements for withdrawal AND transition. But it is just a draft - the final version is expected by October ready for ratification and approval for March 29th 2019. But as David Allen Green said in the Financial Times this is not a draft out of nowhere and indeed is a more legalised version of the December report that the UK signed.

The one clause where there is more substantive thinking is the proposed option of a "common regulatory area" after Brexit on the island of Ireland - (in effect keeping Northern Ireland in a customs union). This is very much a back stop solution if  no other solution is found but as Donald Tusk warned again : "There can be no frictionless trade outside of the customs union and the single market. Friction is an inevitable side-effect of Brexit by nature."

It also led to some outcry by various politicians and commentators over what was seen as the EU forcing May into a corner. In the light of this it is worth remembering some of the key commitments in the December 2017 agreement between the EU and the UK.

  • committed the UK both to no hard border between Ireland and Northern Ireland;

  • to preserving Northern Ireland’s place within the UK’s internal market;  

  • and in the absence of an agreement with the EU, to the full alignment of the UK to “those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”

Meanwhile as the armchair pundits pontificated - mainly through the press and social media - about Northern Ireland, the people who actually are having to live the reality of the Brexit impacts are getting on with things. On Tuesday  I was able to join the Human Rights Consortium Brexit Round Table to discuss developments and following on from the publication of their excellent Rights at Risk report. The Consortium is a broad alliance of civil society organisations from across all communities, sectors and areas of Northern Ireland who work together to help develop a human rights based society and it is their voice that needs to come through loud and clear over the coming months.

It's not just Northern Ireland that continues to be concerned about the EU (Withdrawal) Bill

The lack of resolution between the  UK and devolved government about clause 11  has led both Scotland and Wales to push ahead with their own ‘continuity bills’.

There was  cross-party support in Scotland  on Thursday to introduce an emergency bill  to take direct control over the repatriation of significant EU legislation into Scottish law. Both Scottish and Welsh ministers insist they need these powers in case they and the UK government fail to agree a deal this month on transferring and sharing up to 111 EU powers over areas such as farming, fisheries, environment protection, justice and food labelling which are currently controlled by devolved governments. However, there is a difference in opinion between the Welsh and Scottish presiding officers on whether the continuity bills are within their legislative competence, given that both Scotland and Wales currently cannot legislative in a way that is incompatible with EU law.  

The upshot now is that the UK government will be minded to mount an immediate legal challenge at the supreme court if as expected Holyrood votes in favour of the emergency bill, now being fast tracked through Holyrood. The UK government desperately needs this issue settled before the Lords debates on Clause 11  of the EU withdrawal bill in mid-March and so Ministers from all three administrations will meet next week to discuss it. Watch this space.


There’s been plenty of debate this week and lots of discussion on the Charter,lack of clarity and legal certainty with the bill as well as the increasingly thorny issue of retained EU law and how and where its transposed.

Baroness McIntosh of Pickering (Con) raised the issue of clarifying EU directives which have been adopted but not implemented on exit day ( for example the  EU drinking water directive, will be completed before we leave) and laid an amendment to clarify whether directives that are currently being drafted will be transposed at a later date.

Full transcript here:


If you want to get a sense of how the Northern Ireland issue is playing out in the Lords look no further than this long and detailed letter from Lord Boswell to Karen Bradley, Secretary of State for Northern Ireland. Its forensic and given that Lord Boswell is the Chair of the European Union Committee the substance of this will give some indication of how the issue will play out in the Lords.




NewsletterSamuel Ellis