The repatriation of exclusive competences from EU in post-Brexit United Kingdom

Parks, Edwin and Howells, Carol (2018). The repatriation of exclusive competences from EU in post-Brexit United Kingdom. In: Prinz von Sachsen Gessaphe, Karl August; Garcia Blesa, Juan J. and Szuka, Nils eds. Legal Implications of Brexit. Hagener Rechtswissenschaftliche Schriften, 2. Münster: MV-WISSENSCHAFT, pp. 69–93.



EU law making involves areas as diverse as banking regulation, agriculture, the environment, consumer protection and employment rights. With the UK’s proposed withdrawal from the EU, these powers will be repatriated to the UK. The UK today differs from the UK which joined the European Economic Community in 1973, so the question arises as to where in the UK will powers be repatriated? The corollary to that question is; what is the UK today?

Emerging from the political debate on post-Brexit repatriation of competences from the EU is a tension; between the UK Government’s unitary-state position and the effect and spirit of the respective devolution settlements in each of the Nations. From a legal perspective these very settlements contain within them a continuing conundrum, which the UK Government is attempting to side-line. The conundrum is that these settlements were built upon the UK’s continuing membership of the EU. The settlements give effect to the supremacy of EU law, by specific provisions prohibiting the devolved parliaments and assemblies (in Scotland, Wales and Northern Ireland) from legislating contrary to EU law. The terms of the settlements reveal not a one-to-one relationship between the UK Government and the devolved governments, but a three-sided relationship, in which many key powers and competences are exercised not in Westminster, nor in Edinburgh, Cardiff and Belfast, but by the EU.

Alongside that conundrum is another. A common feature of all the devolved settlements, and subsequent amendments, is that significant policy competences are transferred to the devolved parliaments and assemblies. This paper suggests that Brexit will remove some of the foundations of these devolution settlements and effectively return the UK to a unitary state, with uncertain and potentially destabilising constitutional consequences.

This paper explores constitutional arrangements within the United Kingdom. It considers the competencies of the legislatures within the UK; the Bill before the UK Parliament for exiting the European Union and provides a commentary on the Brexit negotiation process in relation to the legislatures within the UK. The position explored is that at the end of December 2017.

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