The House of Commons Public Administration and Constitutional Affairs Committee issued its report ‘Devolution and Exiting the EU: reconciling differences and building strong relationships’. Discussing its contents, Professor Nicola McEwen suggests that the Report includes some practical recommendations, some of which were informed by CCC research. It also shines a light on some of the more difficult challenges ahead.
The report of the Public Administration and Constitutional Affairs Committee is the latest to underline the pressures that Brexit is posing for the UK’s territorial constitution. The report addresses competing conceptions of sovereignty and devolution, the voice and representation of England, and the need for more institutionalised and transparent intergovernmental relations between the UK and the devolved governments.
In some ways, it is a ‘devolution-friendly’ report. It notes that the ‘legal fact’ of Westminster parliamentary sovereignty has been ‘qualified’ by the political fact that devolution was introduced, strengthened and legitimised by processes of popular sovereignty. It describes devolution as ‘an established and significant feature of the UK constitutional architecture (which) should be treated with respect’. The implication is clear: the UK Government’s conduct during Brexit negotiations has been less than respectful to the devolved institutions.
For example, it recommends that the UK Government produce a ‘Devolution Policy for the Union’ which sets out as a first item recognition of the reserved powers model as the ‘preferred model for devolution’ within the UK. This is a response to the dispute underlying the original status of devolved powers within the EU (Withdrawal) Bill.
It also recommends that the UK Government provide their devolved counterparts with early sight of any draft legislation that impinges upon their competence – the only barriers here are the lack of political will and the time pressures Whitehall civil servants have been under when preparing legislation. But it is tempting to conclude that more productive intergovernmental communication before the EU (Withdrawal) Bill was finalized could have prevented some of the more heated and public disputes that followed its publication and bedevilled its parliamentary passage.
Other recommendations are trickier to implement, or raise further issues not addressed by the committee. The report points to the urgent need to address the governance of England and to provide a voice for the English regions in intergovernmental discussions. But it says little about the process through which this should be realized, whether and how extending English devolution should be a matter for the people of England to determine, and how the divergent interests across England could be mediated.
In light of the enactment of the EU withdrawal legislation despite the withholding of consent by the Scottish Parliament, and the recent and ongoing deliberations of the Supreme Court, the report points to the need for clarity on the status and scope of the Sewel Convention. The convention, which was recognised in statute in the Scotland Act 2016 and the Wales Act 2017, states that the UK Parliament ‘will not normally legislate with regard to devolved matters’ without the consent of the devolved legislatures. The Committees report includes an interesting recommendation for the House of Commons and the House of Lords to establish their own procedures to both acknowledge when legislative consent is needed and to respond to such consent being withheld. It calls upon the UK Government to set out a clear statement of the circumstances under which legislative consent would not be required – defining the limits of what is regarded as ‘normal’. Such a statement is likely to be helpful only if it is reached by agreement with the devolved institutions, which seems doubtful. Besides, as the fate of the Withdrawal legislation revealed, the ambiguity of Sewel can be a convenient tool for the UK Government, at least in the short term. In the longer term, its decision to proceed without the Scottish Parliament’s consent could have detrimental consequences for constitutional relationships.
There has been considerable discussion and debate about the need, or otherwise, for UK Common Frameworks to replace some EU laws once the UK leaves the EU. These would ensure that the devolved institutions remained in step with Westminster in policy areas like agriculture and fisheries so as to avoid barriers to trade and mobility within the UK internal market. The Committee is critical of the lack of a strategic approach to common frameworks by the UK Government. It calls for a coherent policy on the establishment, operation and monitoring of Common Frameworks, alongside more effective intergovernmental machinery, both with greater parliamentary scrutiny. It notes the desirability of reaching common frameworks by consensus, but skirts around the thorny issue of what should follow the failure to reach and maintain consensus.
Designing a system of intergovernmental relations fit for the post-Brexit era is a daunting task. It requires a focus on whether and how forums like the Joint Ministerial Committees should make decisions, where consensus is elusive. It demands identifying mechanisms for incorporating English interests without the weight of these crowding out the devolved institutions. It demands a rethink of procedures for recognizing and addressing disputes when they emerge. And it requires an ongoing commitment to cooperation, mutual respect and a recognition of the UK as a complex multi-layered political system with multiple centres of power, each with their own democratic legitimacy. Altogether, it makes for another interesting parliamentary staging post on the UK’s constitutional journey.
Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh, and Co-Director of the Centre on Constitutional Change. She was one of several fellows of the Centre invited as a witness during the Committee’s inquiry.