Brexit: the devolution factor

At a political level the devolved institutions have been vocal about Brexit from the start, with the Scottish Government, in particular, claiming that a majority of pro-remain voters in its territory in the referendum makes it desirable for it to seek some kind of special relationship with the EU after Brexit. In technical legal terms, however, there does not yet appear to be any general acceptance, particularly within the EU institutions, of a mechanism by which this could be achieved.

The Scottish Parliament and the National Assembly for Wales have now both passed Acts effectively mirroring the EU (Withdrawal) Bill in the UK Parliament, but applying to legislation in Scotland and Wales. Both Acts have now been referred to the Supreme Court by the UK Government on grounds of being beyond the legislative competence of the two devolved legislatures.

Politically, Northern Ireland and its border and relationship with the Republic of Ireland remain among the most contentious and intractable issues of Brexit. From a technical legal perspective, again, no specific mechanisms for giving Northern Ireland a special status have yet been given general acceptance.

(It should be noted that the concept of a territory within the UK having special status in relation to the EU is precedented, in the case of Gibraltar; and the Channel Islands also have a special relationship with the EU on the back of the UK’s membership.)