By Nicola McEwan, Professor of Territorial Politics at Edinburgh University
23 January 2020
The first month of the new government’s term in office has been dominated by the EU (Withdrawal Agreement) Bill. The Prime Minister was in a rush to ensure the exit deal negotiated with Brussels was written into UK law by the time the UK leaves the EU on 31st January. He achieved that goal on Wednesday night, but it was without the consent of any of the devolved institutions.
This is the first time that the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly have together refused consent for a UK bill. Most striking is the extent to which, just days after Stormont reopened for business, the normally divided parties and communities united to express their opposition. Each legislature shared concerns that the Bill gives UK ministers powers to make decisions in devolved areas without their agreement. They also share frustration that the devolved institutions are being side-lined in the Brexit process, and fear that legislative preparations for Brexit are eroding devolved powers.
The withholding of consent by devolved legislatures was never going to stop the bill from being passed. There is no devolution veto. Under each of the devolution settlements, external relations and treaty-making are responsibilities of the UK parliament. Plus, the UK parliament is sovereign. It can make or unmake any laws, including in devolved areas.
But passing the law without their consent breaches one of the most important principles underpinning UK devolution – the convention that the Westminster parliament will not normally legislate with regard to devolved matters, or alter the competences of the devolved institutions, without their consent.
The significance of the Sewel convention, as it is commonly known, was underlined by its inclusion in the Scotland Act (2016) and Wales Act (2017). The Supreme Court confirmed in the first case brought before it by Gina Miller that the inclusion of the Sewel convention in the devolution statutes did not alter the fact that it has no legal effect. But it was a symbolic reflection of the status and authority of the devolved institutions. That makes it matter politically. As such, the message sent from the devolved institutions is one that even a bullish Prime Minister ought not to ignore.
The Withdrawal Agreement Bill will be followed by a range of Brexit-related bills set out in the December Queen’s speech, including on Agriculture, Fisheries and Trade. Each of these is likely to engage the Sewel convention, whereby the lead UK minister will formally request the consent of the devolved institutions for the effects the legislation will have on devolved matters or on devolved powers. None is likely to secure the consent of the Scottish Parliament. The Scottish Government is committed to withholding consent for all but the most essential Brexit laws, perceiving them as a threat to Scottish self-government that undermines the ability of the Scottish Parliament to make its own laws in devolved areas. The consent of the other devolved legislatures is also in some doubt.
In one sense, this might not matter. The UK Government doesn’t require their consent to pass a law, and it has the political strength in parliament to see bills through despite objections from any opposition party or the Upper House. We saw this week how readily the amendments passed by the House of Lords were overturned as the government flexed its parliamentary muscle.
Yet, completely ignoring the concerns of the devolved institutions could spell trouble ahead. The Conservatives are not the only party basking in the glory of electoral success. North of the border, the SNP is similarly buoyant and attuned to any evidence that supports its case that the Union is not working for Scotland. Across the Irish Sea, the restoration of devolved government has not extinguished the demand for a border poll on Irish reunification.
Brexit also brings new complexity to the current system of devolution. Until now, the requirement to comply with EU regulations has limited the extent to which the UK’s four administrations could pursue divergent policy paths. Leaving the EU and its internal market, alongside the vow reiterated by the Chancellor, Sajid Javid, at the weekend to depart from EU rules, makes it more likely that there will be more intra-UK policy and regulatory divergence in the future. Unless, that is, new rules prevent it. Officials from across the administrations have been exploring whether and how to develop new UK ‘common frameworks’ to replace EU regulatory frameworks. At a technical level, that work has been productive and cooperative. But more difficult political questions are yet to be resolved, not least how to govern and maintain the UK’s own internal market after Brexit. Reaching inter-governmental agreement on these issues will be difficult in this political climate.
In the Conservative leadership election, Boris Johnson promised to “stress test” every policy for its impact on the Union. Brexit and all that it entails presents the biggest stress test of all. The Prime Minister may be tempted to draw upon his political strength and the constitutional might of the UK parliament to defy any opposition that comes from the devolved institutions as he ‘gets Brexit done’. But that approach is unlikely to ease the stresses and strains that are already evident in this family of nations.
Professor Nicola McEwen is Professor of Territorial Politics at Edinburgh University; Co-Director, Centre on Constitutional Change and Senior Research Fellow, UK in a Changing Europe.
You can access the full article on The Daily Telegraph website here.