How can the devolved administrations be included in the Government’s Brexit negotiations?

In a recent interview with BBC, Theresa May underlined that she wants the Scottish government ‘fully engaged’ in Brexit talks but insists her government will take the lead in all areas. At the same time, the Scottish Tory leader, Ruth Davidson vowed that she personally would make sure that Boris Johnson takes Scotland into account when negotiating withdrawal from the EU.

Despite those political declarations, still, it is not quite clear how the devolved administrations will be included in the Brexit negotiations from a legal/constitutional point of view. Unlike what happens in European federal States where the participatory rights of the sub-state tier in the EU decision-making processes are often enshrined in their constitutions, in the case of the UK uncodified constitution, they can be found in soft non-binding law provisions. (For a detailed analysis see here)

Under the devolution acts, foreign affairs is a reserved matter. The power to negotiate and conclude treaties lies with the Crown. In that sense, Theresa May is right to say that ‘ministers in Edinburgh could have no veto over the process.’

However, to the extent that the Brexit negotiations will be deemed as a matter related with ‘international relations’ and ‘relations with the EU’, the Memorandum of Understanding and the Concordats on Co-ordination of European Union Policy Issues provide for some participatory rights to the three devolved administrations.

In particular, paragraph 18 of the Memorandum of Understanding recognises that ‘[a]s a matter of law, international relations and relations with the European Union remain the responsibility of the UK Government and the UK Parliament.’ Notwithstanding, it also envisages the full involvement of the devolved regional authorities in the formulation of the UK position. In general, the UK negotiating position is discussed at the Joint Ministerial Committee (JMC) on Europe. Ministers and officials from the three devolved administrations may be also part of the UK team, with the UK minister determining the final position and retaining overall responsibility.

The provisions of the Memorandum of Understanding and the Concordats on Co-ordination of European Union Policy Issues that describe the model of cooperation between London and Edinburgh, Belfast and Cardiff are rather laconic. More importantly, those are ‘statement[s] of political intent [that] should not be interpreted as binding agreement[s]’. In practice, this means that the involvement of the three devolved administrations to the Brexit negotiations will largely depend on the political priorities of Whitehall and the relevant administrations. So, the main challenge will be to find a model of cooperation that will manage to take into account the very different aspirations of the three devolved nations that voted very differently in the referendum.

In particular, with regard to Scotland, the First Minister Nicola Sturgeon has set out its five key interests in the Brexit negotiations: (a) democratic interest – the need to make sure Scotland’s voice is heard (b) economic interest - safeguarding free movement of labour, access to single market and the funding for agriculture and education, (c) interest in social protection - ensuring the continued protection of workers’ and wider human rights (d) interest in the solidarity of independent countries working together to address global challenges and (e) interest in continuing to influence EU decisions.

So, one of the main questions that will have to be answered during the next months is how this vision can be reconciled with the vision that Theresa May and her three Brexiteers spelled out during the weekend. At the moment, it seems like a mission impossible…