Towards a devolution backstop?


The Brexit process has undoubtedly brought about an upswing in engagement between the UK and devolved governments. Leaving aside the Joint Ministerial Committee (Europe) which since 1999 has met ahead of European Council meetings, there have been considerably more formal meetings between Scottish, Welsh and UK ministers in the 32 months since the 2016 referendum than in the 17 years of devolution that preceded it.

In 2016, a Joint Ministerial Committee for EU Negotiations — JMC (EN) — was set up to foster intergovernmental collaboration and provide oversight of EU negotiations. Last year, a Ministerial Forum for EU Negotiations was set up to consider more detailed Brexit effects in particular policy spheres.

For most of the time since the referendum, Northern Ireland has not had a governing executive and so it hasn’t had a voice in interministerial meetings. Ministers from the Scottish and Welsh governments, by contrast, have had ample opportunity to make their voices heard. Whether the UK government is listening is another matter.

The devolved governments have had most difficulty in influencing the UK’s negotiating position with the EU. The Scottish government opposes Brexit in all forms – a position reflecting the big Remain vote in Scotland in 2016. The next best thing is continued membership in the EU single market and customs union.

While respecting the narrow Leave majority in Wales, the Welsh government, too, has favoured continued membership in the single market and customs union. But, despite the JMC (EN) terms of reference committing the governments to seek ‘a common UK approach’ to Brexit, the devolved governments have had little impact in shifting the Prime Minister’s red lines. The UK approach to Brexit, it seems, is the UK government’s approach alone.

Under the terms of the devolution settlement, international relations, including relations with the EU, are reserved to the Westminster parliament. However, from the outset of devolution, a Concordat on Coordination of European Union Policy Issues recognised the legitimate interest of the devolved administrations in ‘processes of policy formulation, negotiation and implementation’ where EU issues touched on devolved matters. Putting these commitments into practice in the context of divergent Brexit perspectives has proven difficult, to say the least.

The devolved governments are more directly engaged in shaping how Brexit might affect the UK’s own system of multi-level government. The European Union (Withdrawal) Bill was enacted in the face of the Scottish parliament’s refusal to give its consent to the changes it makes to devolution.

But the Act imposes less of a constraint on devolution than was originally envisaged. That is in no small measure down to the combined efforts of the Welsh and Scottish governments and legislatures in persuading the UK government and parliament to alter course.

The issue at stake remains whether new UK legislative common frameworks might be needed to replace EU frameworks to avoid barriers to trade and competition emerging within the UK’s internal market once outside the EU.

The European Union (Withdrawal) Act 2018 still gives the UK government the legal authority to introduce regulations that would ‘freeze’ temporarily devolved powers, even if the devolved legislatures withheld their consent, but so far these powers have not been used. Instead, the UK government has chosen a collaborative approach. Civil servants from each of the UK’s four administrations have been working intensively to agree when common frameworks may be necessary and how the UK internal market can be preserved.

This work has been proceeding apace, without politicians in the room. If nothing else, it may contribute to generating better understanding of devolution among UK civil servants, and to building familiarity and trust among officials from across the administrations.

This may bode well for intergovernmental relations in the testing times of the coming months and years, at least among officials. But, at some point, these discussions will graduate to ministerial level, where relationships are already strained, and when different perspectives on Brexit, devolution, and the role and status of the devolved governments are more likely to be exposed.

There is a disjuncture between discussions on common frameworks and the UK internal market, on the one hand, and EU negotiations on the other. The rationale for new devolution constraints is predicated on the UK leaving the EU single market and, as a consequence, the ambit of EU regulations. Yet, we still have no idea what Brexit will entail.

We cannot say, with any certainty, that the UK will leave the EU single market. We can’t even say, with absolute certainty, that the UK is leaving the EU! Even if the UK does leave both, close alignment with EU regulations remains highly probable. This could make redundant the case for new mechanisms or laws designed to constrain divergences between the policies pursued by the UK’s four governments.

Yet, the UK government may nonetheless want its own devolution backstop just in case, in order to avoid new internal barriers to trade and mobility emerging in the future. There is, of course, the opportunity for Brexit to herald a new model of collaborative governance, where the UK and devolved governments make decisions together on matters of shared concern.

That is certainly the aspiration of the Welsh government. Conversely, any new UK constraints on devolved competence would alter the balance of power between Westminster and the devolved institutions to the detriment of the latter.

Devolution was the result of long, hard-fought campaigns and legitimised by popular referendums. Were Brexit to weaken the autonomy of the devolved institutions without increasing their influence over UK policies, relationships between the UK’s territories may become ever more strained.

By Nicola McEwen, Professor of Politics at the University of Edinburgh and Brexit research leader at the The UK in a Changing Europe. This article is from our ‘Article 50 two years on’ report and was co-published with the Constitution Unit at UCL.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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