Holyrood Committee Recommends New Intergovernmental MoU to Address Post-EU Devolution Challenges

The Constitution, Europe, External Affairs and Culture Committee found that devolution has changed and now looks “very different” after the UK’s departure from the EU. A key difference being how the regulatory environment within the UK is managed compared to how it was managed within the EU.

In addition to the MoU, the Committee have proposed the development of supplementary agreements on both Common Frameworks and the use of delegated powers by UK Ministers in devolved areas.

These agreements, the Committee believes, should specifically address how devolution functions outside of the EU, supported by new notes on devolution and operational guidance, all of which the Committee state should be underpinned by “a clear constitutional design including consideration of the principles of subsidiarity and proportionality”.

The report highlighted that there was a “considerable clarity, consistency and consensus” in managing the regulatory environment in the UK before the EU exit. However, post-EU, there has been “significant disagreement” between the devolved institutions and the UK Government regarding how to manage the regulatory environment within the UK.

The inquiry also revealed that since exiting the EU, no attempt has been made to create an intergovernmental agreement on the use of delegated powers in devolved areas by UK Ministers. The Committee noted that the constitutional framework has become more complex, with UK Ministers now holding delegated powers in devolved areas through several UK Acts passed post-EU.

There is, therefore, a “significant risk” that laws made at a UK level in devolved areas will “lessen the accountability of the Scottish Ministers to the Scottish Parliament and lessen the opportunities for the public and stakeholders to engage at a devolved level.”

The Committee cautioned that without consensus at an intergovernmental level, particularly in areas such as Common Frameworks and the use of powers by UK Ministers in devolved areas, there exists a “significant blockage to effective parliamentary scrutiny”, through reduced transparency and the timing and level of information provided to Parliament.

The Committee’s view is even where there is consensus at an intergovernmental level there are substantial challenges for parliamentary scrutiny including “a risk that the Scottish Parliament’s core functions are diluted.”

To address these challenges, the Committee has recommended that the Scottish Parliament reviews its approach to scrutinising intergovernmental relations and the scrutiny of Scottish Ministers in their shared governance role, alongside the UK Government and other devolved administrations.

The Committee also intends to address the issues raised in the report through the Interparliamentary Forum, seeking collaborative solutions to the ongoing challenges faced by the UK’s Parliaments.

Commenting, Convener, Clare Adamson MSP said:

"Our recommendations for a new Memorandum of Understanding between the UK and Devolved Governments should be one of the first steps in the journey towards addressing the impact of the changes in devolution following our departure from the EU.

“As we navigate the path of regulatory divergence, it is critical that any new agreements acknowledge the fundamental principle that the Scottish Parliament must have the ability to effectively oversee all the powers within its competence.

“The evolving regulatory environment resembles a shifting landscape with its twists and turns, which has led to disagreements between devolved institutions and the UK Government. These dynamics present challenges to the Scottish Parliament's core functions and its oversight of ministers that must be resolved to meet the challenges and opportunities ahead."