Devolution and Post-Brexit UK FTAs: The Story So Far

Key points

• The return of trade policy powers to the UK raised concerns about the possible exclusion of devolved administrations from decision-making on trade agreements that could limit their regulatory autonomy.
• The ‘Territorial Inclusivity and Devolution’ research project examined how post-Brexit UK trade agreements affected devolved territories – Scotland, Wales and Northern Ireland – and the extent of their involvement in trade negotiations.
• Researchers used a mixed-methods approach, combining analysis of trade agreements and official documents with interviews of UK and devolved government officials.
• A comprehensive UK International Agreements Database was created, covering over 250 agreements from 2017–2024 and tracking overlaps between treaty provisions and devolved competences.
• Trade agreements were far more likely than non-trade agreements to overlap with ordinarily devolved policy areas (84% versus 47%).
• Implementation of major post-Brexit UK trade agreements, including the Australia and New Zealand FTAs and the CPTPP accession, required only limited legislative changes, at central and devolved level.
• This research shows, however, that devolved regulatory autonomy can be undermined through the interplay between FTAs and the domestic legal framework governing the implementation of such FTAs.
• Regarding devolved involvement in trade negotiations, this research found that devolved administrations were consulted more frequently on trade agreements than on non-trade agreements. Consultation on trade agreements increased significantly after 2019, indicating more regular and constructive intergovernmental cooperation than previously assumed.

The return of trade powers to the UK as a consequence of Brexit, raised questions about the involvement of devolved administrations in a newly independent UK trade policy and its possible impacts in devolved territories. Those questions became the focus of a CITP project – Territorial Inclusivity and Devolution – which set out to explore (i) if and how post-Brexit UK trade agreements affected devolved autonomy and (ii) the extent and manner in which devolved administrations were involved in negotiations on UK trade agreements.

This briefing paper summarises the research project, describes its outcomes and sets out key findings, some of which were unexpected.

Research Context

Decentralisation of powers in the UK through devolution occurred in the context of EU membership. The fact that the EU regulates all aspects of trade on behalf of its Member States meant that potential overlaps and conflicts between trade agreements and devolved competences were not felt as keenly as they might have been if decisions were being made in London rather than in Brussels. EU membership thus created a distance whereby trade policy making at EU level felt removed from the realities of devolved politics. At the same time, the shared obligation on all parts of the UK to implement EU laws had acted as a constraint on the degree of intra-UK regulatory divergence which would otherwise have been possible because of devolution. Furthermore, the parallel expansion of the scope of powers devolved to Scotland, Wales and Northern Ireland and the scope of modern trade agreements into policy areas that are often devolved in the UK, meant post-Brexit UK FTAs were very likely to overlap with devolution.

Against this backdrop, the prospect of powers to negotiate and conclude trade agreements returning to the UK raised concerns about the possible exclusion of devolved administrations from processes very likely to impact on areas of policy for which they had responsibility. Devolved authorities also worried that post-Brexit UK FTAs may be used to regulate areas that ordinarily fall within devolved competence, thereby inhibiting their regulatory autonomy. At the same time, the UK government was concerned that intra-UK divergence at devolved level might undermine its leverage in trade negotiations.

With all these factors in play, the Territorial Inclusivity and Devolution project investigated two categories of issues concerning devolved authorities position in post-Brexit UK trade policy: [1] the impact of post-Brexit UK trade agreements on devolved competence, legislation, and regulatory autonomy [2] the extent and nature of devolved administrations involvement in the negotiation and conclusion of post-Brexit UK trade agreements.

Research Method and Database

The research used a mixed methods approach combining content analysis of official documents on, and legal texts of, post-Brexit UK international agreements with semi-structured interviews with officials from devolved and central governments directly involved or inputting to the negotiation and conclusion of UK trade agreements.

An original UK International Agreements database was developed in which all the international agreements that had been laid before parliament between mid-2017 and end-2024 are recorded.1 To enable comparative analysis of trade vs non-trade agreements, the database includes all relevant international agreements but distinguishes between trade and non-trade agreements. The database brings together data points from a range of different official sources on each of the over 250 international agreements it features and therefore represents a novel record of UK treaties, one that is uniquely comprehensive, particularly from a devolved perspective. It records descriptive details on the treaties (i.e., title, date of signature, date laid in parliament, date of entry into force, command paper reference, subject matter, legislative implementation, and lead UKG department) then provides a high-level (“yes” or “no”) assessment of whether or not provisions in the treaty overlap with areas of devolved competence in one or more devolved territory and notes which policy areas are affected, where overlaps exist. It also describes the nature of consultation carried out by central government with devolved governments as reported by the former.

Because of a reliance on central government reporting, the database alone is insufficient to answer the questions underpinning this research. To further understand the impacts of post-Brexit UK trade agreements, it was necessary to speak to relevant officials, particularly in Scotland, Wales, and Northern Ireland. The findings set out below draw on both the database and the interviews.

Research Findings

[1] UK Trade Agreements and Devolved Competence, Legislation and Regulatory Autonomy

Given the scope of devolved powers in the UK and the potential for contemporary FTAs to impose regulatory disciplines on signatories, it was expected that post-Brexit UK FTAs would overlap with ordinarily devolved policy areas and consequentially constrain devolved regulatory autonomy. In practice, based on this research, the picture is more complex.

While trade agreements were found to be more likely that non-trade agreements to overlap with devolved competence (47% of non-trade agreements and 84% of trade agreements), high levels of overlap did not translate to requiring significant changes in devolved law to implement new post-Brexit agreements.

The two primary acts of UK law adopted to give effect to new trade agreements during the research period were remarkably specific in their effects. The free trade agreements (FTAs) that the UK concluded with Australia and New Zealand were given effect domestically by a dedicated act of primary law and the UK’s agreement on Accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership was also given effect by a dedicated primary act. Notwithstanding the expansive scope of the UK-New Zealand FTA, the UK-Australia FTA, and the CPTPP respectively, the implementing legislation for all three is narrowly focused. The Australia and New Zealand implementing legislation relates to the government procurement chapters of the FTAs; the CPTPP implementing legislation is more expansive but is still relatively small in scope concerning only: technical barriers to trade, government procurement, and intellectual property. The specificity of this primary legislation is notable insomuch as it indicates that, despite being ‘new’ to the post-Brexit UK, these agreements do not seem to have introduced extensive new regulatory obligations domestically, including at devolved level.

Figure 1: UK Legislative Implementation: CPTPP Accession Protocol