Brexit is shaking up the UK territorial constitution: it has renewed pressure for independence in Scotland and unification in Ireland and made internal political relationships between London, Cardiff and Edinburgh more fractious.
The government’s decision to opt for a distant relationship with the EU is at odds with the preferences of the governments in Wales and Scotland. Its deal on Northern Ireland, designed to allow Britain to distance itself from the EU, is rejected by all political parties there. The UK Withdrawal Agreement Act passed despite all three parliaments withholding legislative consent.
Does the UK exiting the European Union herald the disintegration of the Union between England, Scotland, Wales and Northern Ireland?
Challenges to the Union did not start with Brexit, though it has revealed forgotten aspects of the devolution settlement. In truth, devolution was never ‘settled’. Since it received full powers in December 1999, Stormont has been suspended five times – nearly two-fifths of that whole period.
In Wales, devolution is still evolving from the initial very limited grant of powers (see the contribution by Larner and Wincott). The 2014 independence referendum triggered the transfer of new tax raising powers to Scotland.
Nor has devolution ever been one system. It is, instead, a patchwork of ad hoc, bilateral deals for Wales, Scotland and Northern Ireland. That ad hocism has applied to England too. Stop-start moves to decentralise within England include the creation of city mayors in some areas. Recently, Gordon Brown has floated the idea of regionalising England to save the Union.
But no sustained attempt has ever been made to create English regional units for a UK federation – a strategy for which Henderson and Wyn Jones show there is little public support. National devolution for England hardly registers as a possibility. ‘English votes for English laws’ was David Cameron’s response to the Scottish independence referendum. The proposal would have allowed Westminster to function at times as the Parliament for England alone, but has had little public resonance.
The early days of devolution saw Labour in power in Westminster, Holyrood and Cardiff Bay. Early on devolution was lubricated by rapid growth in public spending. Little thought was given to how, or whether, it would work when the political kaleidoscope changed or economic conditions deteriorated. Its formal machinery was left largely undeveloped.
Ministerial representatives of the four governments addressed shared interests in ‘Joint Ministerial Committees’. The Committees stand almost alone as a UK structure for intergovernmental relations, and by comparative standards this is a remarkably limited arrangement. Indeed, for long periods these Committees did not meet. ‘Devolve and forget’ is an apt description of the approach of successive UK governments.
Devolution assumed EU membership, which served as a kind of scaffold that helped hold the UK together. It allowed the Union to muddle along without a strong, dedicated domestic framework. Distinctive devolved policies and programmes could unfold within boundaries defined by the EU’s single market.
The prospect of the elimination of this scaffold variously revealed the ramshackle nature of the UK intergovernmental machinery, injected new energy into the Joint Ministerial Committee (hence the creation of the special sub-group on the European negotiations) and gave a boost to the machinery for interparliamentary co-operation. But it has also generated ill-feeling between UK and devolved governments.
Those tensions look set to increase. Devolved governments want to be involved in negotiating trade deals, reflecting their policy preferences and the particular issues their economies face. The UK government’s track record suggests it will pay little attention to those concerns. Yet the deals will impinge on areas that are devolved. Their implementation will also constrain devolved policy autonomy.
That too could be constrained by the domestic ‘internal market’ the UK government suggests could replace the EU single market. Its rules might cut deep into devolved powers for industrial or agricultural support, environmental or consumer protection.
The more Great Britain and the EU diverge, the more onerous the operation of the Northern Ireland protocol will become. Echoing current business pressure for alignment with the EU even after Brexit, devolved governments may face pressure from business not to diverge from England’s large regulatory space.
Other rows are coming – not least about successor UK government replacements for the Common Agricultural Policy and EU structural funds.
Devolution makes the UK a Union of governments as well as peoples. But when politicians talk of the Union, they mean different things. Many Conservative MPs articulate strong support for the Union, though often in a rather ‘unitarist’ form.
Its hallmarks are scepticism about difference, divergence and devolved policy autonomy; partisan criticism of devolved policy performance; and a tendency, however temporarily, to attach their Unionism to particular politicians from outside England, such as Ruth Davidson or the DUP.
Criticism of the SNP for ‘divisive nationalism’ and alleged Scottish government policy failures is growing from Labour as well as the Conservative MPs. Their aim, it seems, is to deflect pressure for an independence referendum in Scotland. Conservatives have long used Welsh Labour’s track record as a stick to beat the Labour party generally.
Outside England, criticism of divisive nationalism can appear as the product of a taken-for-granted Anglo-British identity. Whatever the merits of a particular criticism, when Westminster politicians committed preserving the UK focus on purported devolved policy failures their interventions may prove counterproductive.
If they pursue uniformity in the name of Unionism their efforts may backfire. Unless matched by sustained engagement, tinkering with the institutional machinery for the Union could have a similar effect.
The Union is faced with powerful pressures for change: some due to Brexit, others intrinsic to UK territorial politics. Whatever the constitutional future holds, people will continue to live side-by-side, mutually entangled lives on these islands.
Politicians on all sides could now do worse than consider ‘the harmonious and mutually beneficial development of the totality of the relationships among the peoples of these islands’. The phrase is from the Belfast/Good Friday Agreement, written in pursuit of peace. Both this phrase, and the all-islands, interstate and intergovernmental institutions to which the Agreement gave rise, may now have a wider relevance.
By Daniel Wincott, Director of Governance after Brexit and Blackwell Professor of Law and Society at Cardiff University. This piece was taken from our Brexit: what next? report.