The decision to leave the EU will have a significant impact on the UK’s internal constitutional arrangements. Debate about how this should be managed has also exposed the weakness of inter-institutional relations between the various governments and legislatures of the United Kingdom, and the need for the quality of relations to be improved.
As well as handling the impact of Brexit on the devolution settlement, the government must use it as an opportunity to promote stronger and more effective relationships between the four nations of the United Kingdom.
Under the UK’s ‘reserved power’ models of devolution, all powers not expressly reserved to Westminster are devolved to that nation, and the division of powers can be regarded as binary.
This means that, if nothing were done, when the UK leaves the EU, powers over areas of EU competence not expressly reserved to the UK Parliament would automatically flow to the devolved administrations. There are 153 areas where EU law intersects with devolved competence, including powers over agriculture, fisheries and the environment.
The UK government has expressed concern that if all these powers return in the first instance to the devolved administrations, this could lead over time to policy and legislative divergence in areas that could undermine the UK internal market.
Although the number of powers returning from the EU that fall within devolved areas of competence is limited, such divergence could be damaging.
Debate continues regarding how to address this. The UK government initially proposed that these powers should return to Westminster in the first instance, and that they could then be passed back to the devolved administrations later, once ‘common frameworks’ have been established where needed.
Provision for this was made under Clause 11 of the EU (Withdrawal) Bill, which would have prevented the devolved legislatures from modifying any retained EU law, regardless of what would have otherwise been devolved.
On 13 July 2017, however, immediately after the Bill was published, the First Minister of Wales, Carwyn Jones AM and the First Minister of Scotland, Nicola Sturgeon MSP, issued a joint statement, which described the Bill as a “naked power grab”.
The Scottish and Welsh governments subsequently also published Legislative Consent memoranda stating that neither government would present Legislative Consent Motions (LCMs) for the Bill in its current form.
In his speech on 26 February, the Minister for the Cabinet Office, David Lidington, responded to the concerns raised and outlined the government’s proposal to amend the EU (Withdrawal) Bill to make it clear that while frameworks are being agreed, the presumption will be that powers returning from the EU sit at devolved level.
There would be a pause while the governments design and implement the required common frameworks. Where powers need to be part of a UK-wide framework, the UK Parliament would retain the ability to legislate to achieve this. This is a positive step. However, objections remain from the devolved governments.
Although this debate regarding to whom powers should return in the first instance is of great importance, consideration must also be given to how decisions should be made regarding whether or not UK-wide frameworks are needed in specific policy areas and how these frameworks will work in practice.
On a visit to the Scottish Parliament last year, it was suggested that a UK Standing Advisory Committee on powers returning from the EU, modelled on the Calman Commission on Scottish Devolution, might be a good means of deciding where powers should rest.
Where shared frameworks are necessary meanwhile, the experience of this in the fiscal framework established by the Scotland Act 2016 should be learnt from and built upon.
Consideration must also be given to what institutions and mechanisms exist to bind the UK together while accommodating territorial divergence and how positive relationships can be fostered between the UK government and Parliament in Westminster, and the devolved governments and legislatures. These questions are especially important if we are to see more shared frameworks and policy making in the future.
The Public Administration and Constitutional Affairs Committee (PACAC), which I chair, recently published a report entitled The Future of the Union, part two: Inter-institutional relations in the UK.
This found that the quality of intergovernmental and inter-parliamentary relations in the UK is poor compared to other systems of decentralised government, such as in Canada, Spain or Germany.
The quality of inter-institutional relations has also lagged behind constitutional developments as the devolution of further powers to the devolved parliaments and the corresponding need for greater cooperation between the devolved legislatures and the parliament in Westminster, has not been met by the development of formal procedures to facilitate this cooperation, which has instead taken place through largely informal channels.
While intra-Civil Service relations are better due to the continuation of the shared Civil Service in Great Britain, there remain concerns that the devolved governments are too often treated as an afterthought by Whitehall.
For the reasons outlined, it is essential that this situation is addressed. In its report, PACAC therefore looked at this situation in detail and made a series of recommendations.
These included recommendations that the amount of time set aside for Joint Ministerial Council (JMC) business should be increased; that JMC sub-committees should be established in areas of mutual interest, including tax and welfare; that steps should be taken to enhance inter-parliamentary relations, including by allowing committees of the House of Commons to meet jointly with any specified committee of any of the devolved legislatures; and that Whitehall departments implement procedures to ensure officials from the devolved administrations are engaged in UK policy formation.
Although the UK government did not accept the majority of PACAC’s recommendations, we are continuing to look at these issues. PACAC is now carrying out a wider ranging inquiry Devolution and Exiting the EU.
This will reinforce and build on the recommendations PACAC made in its report on The Future of the Union, part two and will put them in the context of the future of devolution in the UK and why effective and lasting mechanisms for coordinating work between Westminster and the devolved administrations is so important.
Brexit presents a risk to the cohesion of the UK. However, it also presents an opportunity to address the UK’s lack of inter-institutional machinery and subsequently poor inter-institutional relations.
I urge the government to implement PACAC’s recommendations. However, I would also caution that the implementation of formal arrangements is not enough alone. If these are not underpinned by mutual respect and a genuine desire to engage, goodwill, trust and effective relationships will not be achieved.
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.