Only genuine co-operation with the devolved administrations can prevent further fracturing of the Union
24 October 2019
By Jess Sargeant
Brexit has presented huge difficulties for the relationships between the nations of the UK. Cooperation between the four governments is at a low point, and joint working on no-deal preparations has significantly declined since Boris Johnson became prime minister. This conclusion, which forms part of a new Institute for Government report, underlines the deep challenges ahead as the UK prepares to leave the EU.
These challenges exist at a political level, where the UK government has pursued a major policy that has been strongly opposed by the Scottish and Welsh governments. While in Northern Ireland, without ministers, similar political tensions do not arise, there is concern that NI’s interests as a whole are not being adequately taken into account. But there are also challenges at a practical level, where unprecedented levels of intergovernmental coordination have been necessary to prepare for Brexit, and for the possibility of leaving the EU without a deal.
If the UK government continues with its current approach to the devolved nations, there is a risk that things may deteriorate further.
Intergovernmental working on no-deal preparation was in a good place prior to the original March Article 50 deadline, and devolved representatives were regularly attending Theresa May’s cabinet committees. The UK and devolved governments had also worked well together to correct the statute books for exit day through secondary legislation—most of which has passed through the UK parliament with the consent of devolved ministers.
Despite a continued commitment to include devolved representatives in UK government preparations for Brexit, since Johnson took office there has been a marked change in practice. As of 8th October, Scottish ministers had been invited to just eight out of over 50 meetings of Johnson’s cabinet committees; and even at official level, civil servants in the devolved administrations reported that their counterparts in Whitehall were sharing even less information than before.
This does not bode well. Even though no deal itself looks less likely than it did perhaps a few weeks ago, the government’s approach so far may be indicative of how it will operate in future. Whether Johnson’s deal is passed and ratified, or whether we leave the EU without a deal at some future date, there are significant intergovernmental tests on the horizon. Specifically, there are four big questions the four governments of the UK will need to reach agreement on.
First, there are critical pieces of Brexit legislation that still need to be passed, including on agriculture, trade, fisheries, and immigration—and most importantly, the Withdrawal Agreement Bill (WAB) to implement Johnson’s deal—which will affect devolved competencies. Under the Sewel convention, consent from the devolved legislatures will need to be sought. But since July 2018, when Westminster passed the EU Withdrawal Act without the consent of the Scottish parliament, the Scottish government has been on a “Sewel Strike,” refusing to ask MSPs whether they consent to UK-wide Brexit legislation (making one exception for the Reciprocal Healthcare Bill). Consent from the Scottish parliament is unlikely to be forthcoming on any of this legislation, but the Scottish government has been particularly damning in its rejection of the WAB. The Welsh Assembly has also indicated that it will refuse consent, and Northern Ireland without a sitting Assembly will be unable to even vote on a motion. In order to ratify the Withdrawal Agreement, the UK government may need to proceed without the approval of any of the devolved administrations.
The UK parliament is sovereign and therefore retains the ability to legislate in devolved areas—so legally the UK government can push through the legislation, even without consent. But this would likely provoke a strong backlash, leaving intergovernmental relations even more fractious and making it more difficult still for them to work together. The UK and devolved governments urgently need to enter into discussions as to how to revive and reform the Sewel convention.
Second, the UK and devolved governments have been working together to develop new common frameworks that will replace EU law in some devolved areas. These frameworks are regarded as necessary to fill the gap left by EU law, which has acted as a limit on the scale of divergence between the four nations in devolved areas—protecting the UK’s own “internal market” and preventing barriers to trade and unfair competition within the UK.
There has been some good progress on the development of the frameworks at a technical level, but none have yet been finalised by ministers. The biggest challenges will come when political sign off is required. If the Northern Ireland executive is not restored, these frameworks may have to be implemented without any political buy-in. The Scottish government has rejected the concept of the UK internal market, expressing concerns that it is a way for Westminster to argue against the further devolution of powers.
Third, there are still questions about how EU funding—particularly structural funds and the common agricultural policy funding—will be replaced after the UK leaves the EU. The UK government has committed to introduce UK schemes with the same cash value, but the Welsh and Scottish governments remain sceptical, calling for stronger guarantees of like-for-like funding. But this is not just a question of financial guarantees. It is also a question of who will control any replacement funding schemes. Despite a commitment that future schemes will respect the devolution settlement, there is suspicion that such programmes may be used to allow the UK government to spend directly in devolved areas.
Finally, the role of the devolved administrations in future trade negotiations, both with the EU and other states, is another likely flashpoint. The Scottish and Welsh governments have been critical of the UK government’s approach to Brexit negotiations; all major decisions on the Brexit strategy have been taken—more or less unilaterally—by UK ministers, with limited consultation with their devolved counterparts. Although formally trade is a matter exclusively for the UK government, many trade deals will have an impact on devolved matters, for example on the NHS and food standards, and will require the cooperation of the devolved governments to implement certain aspects of new arrangements. Meaningful and systematic engagement is necessary, or problems may arise later down the line when it comes to implementation of the UK’s international obligations at a devolved level.
No-deal preparations have absorbed the majority of intergovernmental capacity and diverted attention away from addressing longer-term issues around these working relationships. A UK-wide review into intergovernmental relations was commissioned in March 2018, but to date has made little progress. If the UK government is to successfully navigate these difficult waters, it needs a new approach—one that treats its devolved counterparts as partners rather than stakeholders to be consulted.
As we argue in our report, Brexit has put a major strain on relations between the four nations of the UK; once a remote possibility, the breakup of the United Kingdom is now a clear risk. If the UK government wishes to strengthen and preserve the union, a new strategy is needed.
You can access the full article on the Prospect Magazine website here.