Facing the strain: intergovernmental relations between Cardiff and Westminster

In the aftermath of the most recent EU Council meeting, the prospect of the UK’s exit from the European Union without a withdrawal agreement looms larger than ever. As Welsh ministers warn of the ‘catastrophic’ risks of such an outcome, the coming months will be a crucial test for intergovernmental relations between Cardiff and Westminster and for the wider territorial constitution.

The agreement reached between the Welsh and UK Governments in April this year brought their long dispute over the European Union (Withdrawal) Bill (EUWB) to a close. But recent developments have shown that the trust and goodwill underpinning this agreement rests on delicate foundations.

The Welsh ‘continuity’ legislation

In June this year, the Welsh ‘continuity’ legislation (formally, the Law Derived from the European Union (Wales) Act 2018), entered into force. The bill was passed by the National Assembly for Wales at the height of the intergovernmental dispute over the UK Government’s plans for the distribution of post-Brexit powers under the original European Union (Withdrawal) Bill. The Welsh legislation was conceived as a necessary measure to prevent the recentralisation of devolved competences. It empowers Welsh ministers to create, via regulations, a body of ‘EU derived Welsh law’ in areas where EU law intersects with devolved competences, so as to maintain continued alignment where necessary post-Brexit. It also seeks to safeguard Welsh devolution by requiring UK ministers to seek the consent of Welsh ministers when making regulations under Acts of Parliament in areas of EU law and devolved competence. (For a more detailed summary of the Act, see here.)

The UK Government argued that the bill was outside the Assembly’s legislative competence and referred it to the Supreme Court, along with the continuity legislation passed by the Scottish Parliament. However, as part of the intergovernmental agreement reached in April over the terms of the EUWB, the UK Government withdrew its referral of the Welsh bill, and the Welsh Government agreed to take steps to repeal the legislation. The bill received royal assent in June, which enabled the Welsh Government to exercise the powers under the Act to repeal it.

Strictly speaking, the Welsh Government has fulfilled the letter (if not the spirit) of the April agreement: the necessary regulations required for the Act’s repeal have been prepared. Tellingly, however, the vote which is required in the Assembly to repeal the legislation has not yet been held. Instead, the Act sits quietly on the statute book. Welsh ministers claim that the appropriate time to hold the vote has not yet been found, but there appear to be other considerations at work.

Why the delay?

It seems that the Welsh Government is biding its time, and with good reason. First, the Scottish continuity legislation is currently awaiting judgment by the Supreme Court. The decision is likely to have significant implications for the interpretation of devolved competences, as underlined by the legal interventions by both the Counsel General for Wales and Attorney General for Northern Ireland which broadly supported the position of the Scottish Government. Understandably, Welsh ministers will want to know the state of the constitutional jurisprudence before taking their next steps. In any event, a ruling against the Scottish Government would not necessarily prove conclusive for the Welsh legislation, which differs substantially in its form and substance to the Scottish bill.  Whereas the Welsh legislation empowers ministers to make regulations to retain EU law, the Scottish bill would automatically retain EU law in devolved areas at the point of withdrawal from the EU.

The Welsh Government may also be mindful of the weakness of the Sewel convention. The convention that the consent of the devolved institutions should be obtained for any measures by the UK government or parliament which encroach on devolved competences is enshrined in both the Wales Act 2017 and now the EU Withdrawal Act 2018. But Brexit has shown the bark of Sewel to be worse than the bite. Legally, it is non-justiciable before the courts, as ruled by the Supreme Court in Miller. The UK Government’s decision to proceed with the Withdrawal Act in the face of a decisive, cross-party refusal of legislative consent by the Scottish Parliament also raises questions about the convention’s political force. Under such circumstances, as Douglas-Scott points out, continuity legislation is one of the only legal mechanisms which the devolved institutions possess to protect their constitutional interests.

Trust is also an important part of the context here. Amid the constitutional déjà vu of the Brexit process so far, the trust between the Welsh and UK governments has ebbed and flowed. The April agreement renewed an early commitment by the UK Government to strive for a consensual, UK-wide approach to the withdrawal negotiations, but recent events will have left the devolved governments sceptical. Repeating a familiar tendency towards secrecy during the Brexit process, the UK Government refused to share its white paper on the UK’s future relationship with the EU with the devolved administrations until a week prior to its publication, to their evident consternation.

There has been notable cooperation in the development of post-Brexit agricultural frameworks, but other events may have further undermined goodwill. A dispute process launched by Welsh and Scottish ministers last year, seeking Barnett consequentials from the additional funding for Northern Ireland agreed as part of the Conservative-DUP confidence and supply arrangement, ended in failure. According to Welsh First Minister, Carwyn Jones, the UK Government, acting as party and adjudicator in its own dispute, decided that there was no case to answer. There are also ongoing concerns among Welsh ministers that the UK Government’s proposals for a ‘shared prosperity fund’ to replace EU funding to Wales after Brexit would involve the recentralisation of a key area of devolved spending. Plans for post-Brexit immigration policy have created further tensions, as highlighted by the latest meeting of the Joint Ministerial Committee (European Negotiations).

Finally, there is the heightened prospect of no-deal departure from the EU, underlined by the postponement of a November meeting of the EU Council pending further progress in the negotiations. This is compounded by ongoing political instability at the UK level.  Amid the urgency of a no-deal scenario, the April commitment by the UK Government to proceed by agreement could be placed in jeopardy. Welsh ministers may yet come to view the continuity legislation as a necessary safeguard to devolution after all.

Continuity or conflict anew?

The fate of the Welsh continuity legislation is likely to be settled in the coming months. It was always intended as a ‘fall-back option’, and Welsh ministers have restated their preference to avoid using it. There is also evidence of continuing goodwill between the UK and Welsh governments, as the Welsh Brexit minister, Mark Drakeford, talks of closer cooperation with the devolved governments having ‘seeped into the Whitehall machine’. Nevertheless, recent events have provided the Welsh Government with ample reasons to keep an ace up its sleeve. They have also further underlined the need for reform of intergovernmental machinery in the UK. The review currently underway could not be more timely. In the meantime, ministers on both sides must make the best of a bad situation.  If further conflict is to be avoided, it seems that constructive working relationships with the devolved administrations will need to seep even further into the Whitehall machine.

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Greg Davies's picture
post by Greg Davies
Cardiff University
29th October 2018
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