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  4. MSPs call for new agreement on how devolution works

MSPs call for new agreement on how devolution works

24th October 2023 | government-administration | Parliamentary

A new memorandum of understanding ("MoU") between the UK and devolved governments is needed as a result of post-Brexit changes to how devolution is working, a Holyrood committee has concluded in a report published today.

MSPs on the Constitution, Europe, External Affairs & Culture Committee found that devolution now looks “very different” after the UK’s departure from the EU, a key difference being how the regulatory environment within the UK is now managed.

In addition to the MoU, new agreements are needed, the committee believes, specifically addressing how devolution functions outside the EU. These would take the form of supplementary agreements on both common frameworks and the use of delegated powers by UK ministers in devolved areas, supported by new notes on devolution and operational guidance. All of this should be underpinned by “a clear constitutional design including consideration of the principles of subsidiarity and proportionality”.

The report highlights that prior to Brexit there was a “considerable clarity, consistency and consensus” in managing the regulatory environment in the UK. 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 Brexit, no attempt has been made to create an intergovernmental agreement on the use of delegated powers in devolved areas by UK ministers. The committee notes 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.

A “significant risk” then arises that laws made at 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”.

Even where there is consensus at an intergovernmental level, the MSPs add, 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 recommends that the Scottish Parliament reviews its approach to scrutinising intergovernmental relations and the Scottish ministers in their shared governance role, alongside the UK Government and other devolved administrations.

Convener Clare Adamson MSP commented: “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.”

Read the report.

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