EU powers after Brexit: ‘Power grab’ or ‘power surge’?

From 1 January 2021, hundreds of powers previously exercised by the European Union will flow back to the UK Government and the devolved administrations in Edinburgh, Cardiff, and Belfast.

The UK Government says this will represent a “power surge” for the Scottish and Welsh Parliaments and the Northern Ireland Assembly. The Scottish Government says it is actually a “power grab” by Westminster.

This Insight looks at the context of these arguments, how these powers are currently used, and what will change at the end of the Brexit transition period.

Who currently has these powers?

Since the UK joined the European Union in 1973, the EU has exercised – with the agreement of all Member States – “competencies” (or powers) over trade, competition, the environment, agriculture, among others. Both the UK Government and, since 1999, the devolved administrations, have been able to make policy in these areas, but only if they comply with EU directives, regulations and case law.

In this sense, the UK’s four governments presently share these competencies with the EU, legislating in their respective areas of responsibility. The Scottish and Welsh Parliaments, for example, can pass laws relating to agriculture and the environment (both devolved matters) so long as they comply with EU laws. Similarly, Westminster can legislate in trade and competition (both reserved/excepted matters), again so long as they do not conflict with EU law.

At the end of the Brexit transition period (31 December 2020), the reserved/excepted and devolved competencies of the UK and devolved administrations will remain the same. However, their discretion to make policy in these areas will expand because EU law will no longer apply.

Origins of the debate

Allegations of a “power grab” are not new. SNP MPs first raised concerns about what would happen to powers over agriculture and fisheries in March 2017. Nicola Sturgeon, the First Minister of Scotland, asked the Conservatives to “make clear that there will be no Westminster power grab,” following Brexit. In response, the then Prime Minister Theresa May said discussions over which powers would remain “at a UK level” or “be further devolved,” were ongoing.

This was a reference to discussions over common frameworks, which were intended to avoid potentially disruptive policy differentiation between the four nations once EU legal frameworks fell away. In October 2017, the UK Government and devolved administrations agreed principles for these frameworks, although there remained disagreement as to how these would be managed.

The devolved administrations all accepted the need for common policies in certain areas but argued they should be negotiated and agreed between the four nations rather than “imposed” from London.

The EU Withdrawal Bill

During the passage of the European Union (Withdrawal) Bill 2017-2019, claims of a “power grab” resurfaced.

Clause 11 of the Bill replaced an obligation on devolved legislatures to comply with EU law with another to comply with ‘retained EU law’. This was unless a UK Government minister “released” certain areas back to the devolved legislatures by Order in Council.

In July 2017, Nicola Sturgeon and the then First Minister of Wales, Carwyn Jones, jointly condemned what they calleda “naked power grab.” They argued that most powers ought to revert to devolved control in the first instance, rather than flow to Westminster for subsequent devolution.

In response, the UK Government amended Clause 11 so that most powers went to the devolved legislatures, although subject to restriction by Order in Council in consultation with (but not necessarily the agreement of) devolved parliaments or governments.

The Welsh Government accepted this change and recommended legislative consent. The Scottish Government did not. What was now Section 12 of the EU (Withdrawal) Act 2018 nevertheless became law.

UK Internal Market White Paper

The recent UK Internal Market White Paper referred to “the single biggest transfer of powers to the devolved administrations in history,” citing a total of 160 policy areas which intersect with devolved competence. Speaking in the House of Commons, Business Secretary Alok Sharma, said 111 powers would “flow back” to Scotland, as well as “around 70 to Wales and around 150 to Northern Ireland.”

SNP politicians said these powers were not new. The Scottish Government’s Constitution Secretary, Mike Russell, described the UK Government’s list of powers as:

A mishmash of things the Scottish Parliament already has, things they’ve already decided we won’t have because of the frameworks, and things that could be automatically overridden by a decision by the UK government to take a power away.

The Welsh Government no longer refers to a “power grab”, although the Plaid Cymru MP Hywel Williams said the Internal Market Bill would transfer “vast powers over devolved areas to Tory Ministers.” Mr Sharma has denied accusations of a “power grab”, saying it was actually “a power surge to the devolved Administrations.”

The UK Government has argued that no powers currently exercised by the Scottish and Welsh Parliaments and Northern Ireland Assembly will be taken away. It states: “All powers that have been devolved will remain devolved.”

State aid/subsidies reserved for UK Government

One area the UK Government proposes to reserve explicitly is regulation of state aid (or subsidies). UK ministers believe this is already a Westminster responsibility but say they will “legislate to expressly provide that subsidy control is a reserved matter.” The Scottish Government believes this legal competence rests with the Scottish Ministers.

The Scottish and Welsh Governments have expressed willingness to work with the UK Government on the governance of any subsidy scheme but argue this should go beyond consultation.

Responding to press reports regarding the UK Government’s plans for state aid, First Minister Nicola Sturgeon tweeted that they would amount to a “full scale assault on devolution.”


About the author: David Torrance is a researcher at the House of Commons Library, specialising in devolution and the constitution.

Photo: Dave Kellam / CC BY-SA