Negotiating Brexit in a devolved state: The dynamics of intergovernmental relations

Theresa May has repeatedly declared her commitment to involving the devolved governments in the Brexit process. In this post, Nicola McEwen discusses the likely dynamics of Brexit negotiations between the UK’s four governments. She argues that if the intergovernmental process fails to give a meaningful voice to the devolved governments this could have serious and long-lasting repercussions for territorial politics across the UK.

As we ponder the forthcoming Brexit negotiations between the UK government and the EU27, another set of negotiations is already underway. The UK government and the devolved administrations have kick-started a period of intergovernmental relations which promise to be more intense than any that have gone before. This is a high stakes process. The extent to which it gives a meaningful voice to the devolved governments represents the Union’s biggest test since the Scottish independence referendum.

The Prime Minister has frequently declared her commitment to engaging with the devolved governments. After her symbolically significant visit to meet Scotland’s First Minister shortly after she assumed office, Theresa May noted: ‘I have already said that I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50.’ There have been some mixed messages since then, but at October’s plenary session of the Joint Ministerial Committee (JMC) – the first since December 2014 – the PM continued to insist she wanted the input of the devolved administrations in shaping Brexit: ‘The country is facing a negotiation of tremendous importance and it is imperative that the devolved administrations play their part in making it work.’ Quite what part she envisages them playing remains unclear.

Certainly, there is a commitment for the leaders to meet more frequently than previously, including a further plenary meeting of the Joint Ministerial Committee in the new year, before Article 50 is triggered. But despite being the key forum for intergovernmental relations since devolution, the JMC has not provided a vehicle for the devolved governments to exert meaningful influence. In part, this was because it was never intended to play this role. The JMC was set up to foster good communication, not co-decision. It has been much criticised by the devolved governments, most vociferously by Welsh First Minister, Carwyn Jones. In evidence to the Lords Constitution Committee, he complained that the JMC is ‘basically a Westminster creation that is designed to allow Westminster to discuss issues with the devolved Administrations. It is not jointly owned… and it is not a proper forum of four Administrations coming together to discuss issues of mutual interest.

The devolved governments have already exerted some influence in shaping the new Joint Ministerial Committee (European Negotiations). Chaired by the Secretary of State for Exiting the European Union, it was established in November to provide a forum for the devolved governments to engage with the negotiations process. Its remit is much more specific and task oriented than the other JMCs. It will ‘seek to agree a UK approach to, and objectives for, Article 50 negotiations’ and provide oversight of negotiations as they get underway ‘to ensure, as far as possible, that outcomes agreed by all four governments are secured’. If David Davis didn’t appreciate that this meant rather more than information-sharing, he would have been left in no doubt after the JMC (EN)’s first meeting.

The devolved governments are united in their determination to have a voice, and to exert influence over the Brexit negotiations before and after Article 50 is triggered. They are also united in their desire to see a ‘soft’ Brexit which embeds the UK within the EU single market, and in their desire to ensure that the repatriation of powers from Brussels doesn’t lead to a recentralisation of powers within the UK. Beyond this, however, they approach these negotiations from different perspectives.

Northern Ireland’s interests lie in accentuating its distinctiveness as the only territory of the UK to share a land border with an EU member state. The Northern Ireland Executive doesn’t always speak with one voice, but there is cross-community commitment to avoiding any border barriers that could threaten peace.

The Scottish Government has been emboldened by the 62 per cent of the Scottish electorate who voted Remain. If a ‘hard Brexit’ seems likely, the Scottish Government will push for a bespoke solution that would allow Scotland to remain within the European Economic Area. Even if such a proposition could overcome political objections we can anticipate from the UK government and the EU27, it would require a substantial revision to the devolution settlement, further accentuating the UK’s constitutional asymmetry.

The vote for Brexit in Wales, as well as the general status of Wales within the Union, constrains the negotiating options open to the Welsh government. Their interests are primarily financial, focused on securing campaign promises to ensure that Wales does not suffer from the loss of EU funding. The Welsh First Minister also pointed recently to what he regarded as the impracticability of bespoke solutions for different nations within the UK sharing ‘the same land mass’. This suggests his support for a special deal for Scotland would not be forthcoming, but leaves room for separate arrangements on the island of Ireland.

These distinctive and potentially competing interests are being pursued in a series of bilateral negotiations between the UK government and each of the devolved governments. The prospect of all of the devolved governments being satisfied at the end of the process is minimal. The prospect of any of them being satisfied may not be much better. That the remit of the JMC (EN) requires only that the governments ‘seek to agree’ a UK approach leaves some wiggle room for the UK government if agreement proves impossible.

But the threat of a second Scottish independence referendum looms large over these processes. The risks to stability and the peace process in Northern Ireland are also uppermost in the minds of negotiators. If this intergovernmental process fails, it could have serious and long-lasting repercussions for politics and relationships on these islands.

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post by Nicola McEwen
University of Edinburgh
1st December 2016
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