Abstract

General Election 2019: constitutional challenges for the Welsh government

Published: 16 December 2019
Author: Greg Davies

Greg Davies, Cardiff University, considers the impact the general election result is likely to have on the constitutional future of Wales.
 

After the 2019 general election, the UK finds itself governed by a Conservative and Unionist Party with profound faith in its constitutional ambitions. It has faith that the Union will withstand its Brexit plans, despite opposition from the Welsh and Scottish governments and all parties in Northern Ireland. It has faith that a new trade agreement with the European Union will be finalised in a matter of months, not years. The Prime Minister even professes faith that the revised Withdrawal Agreement would create no regulatory barriers to trade between Northern Ireland and the rest of the UK – a claim rebutted both by the Irish government and, it seems, his own.

The challenge for the pro-Union Welsh Labour government over the coming months and years is how to engage with such faith – and power. Armed with a decisive majority, the Prime Minister now wields the sovereignty of a Westminster Parliament firmly under his party’s control. Meanwhile, the absence of reform to the UK’s informal intergovernmental structures means that UK government responsiveness to the concerns of the devolved governments will remain entirely dependent on UK ministers acting in good faith, in particular the Prime Minister himself and the Chancellor of the Duchy of Lancaster, currently Michael Gove.

This combination of Tory power and faith lays the ground for constitutional clashes between the Welsh and UK governments on multiple fronts.

Brexit

While the election result has put the eventuality of the UK’s exit from the European Union beyond doubt, the timing and handling of what comes next are likely to cause considerable tension. With the UK due to leave the EU by legal default on 31 January 2020, the UK government reportedly aims to get the European Union (Withdrawal Agreement) Bill through the UK Parliament before the new year. This will leave little time to address the major concerns of the Welsh and Scottish governments, who have so far refused to recommend that their respective legislatures give consent to the bill.

The consent of the devolved legislatures is required by the Sewel Convention, according to which the UK Parliament does not normally legislate in relation to the competences of the devolved institutions without their consent. The political consequences of contravening this convention for intergovernmental relations should not be underestimated. The decision of the UK government to proceed with the European Union (Withdrawal) Act 2018 in the face of overwhelming opposition from the Scottish Parliament prompted the Scottish government to disengage from the legislative consent process on all UK Brexit legislation (though there have been exceptions). It has ‘poisoned relationships’, according to the Welsh First Minister, Mark Drakeford.

The commitment not to extend the transition period beyond December 2020 will also present difficulties. The European Union (Withdrawal) Act 2018 grants the UK government powers to ‘freeze’ the competences of the devolved institutions where necessary to maintain the coherence of the UK’s internal market. So far, those powers have not been used, but the governments are yet to agree on common frameworks to replace EU rules. More worryingly, the Conservative pledge not to extend the transition period beyond 2020 is likely to make expediency paramount and intergovernmental consensus a secondary concern at best.  

Significant differences are also likely to arise as to the nature of the future relationship. Before its pivot to supporting a second referendum and Remain, the Welsh government favoured close alignment with EU standards, post-Brexit. Faced with significant Welsh Labour losses at the election and the near certainty of the UK’s exit from the EU at the end of January, it may well revert to this position while continuing to stress the need to avoid a ‘no deal’ outcome after December 2020. The scale of the Conservative majority has provided the UK government with some leeway here, but it remains to be seen whether it will use this space to shift from its current ‘hard Brexit’ trajectory.

The broader issue of post-Brexit trade may also cause difficulties. The UK government committed to the creation of a ministerial forum on international trade in early 2019 to facilitate input from the devolved governments. Nearly a year on, however, the forum is yet to meet. According to the Welsh First Minister, developments have ‘frozen’ since Johnson became Prime Minister in July. Welsh minister for International Relations, Eluned Morgan, has also said that some trade-related advisory groups have been formed by UK ministers but have not included Welsh representation. There is serious concern among the devolved governments that they will find themselves shut out of the development of UK trade policy, and that the necessary expertise in devolved matters will be lacking from future negotiations.

Elsewhere the Conservatives have pledged that the ‘Shared Prosperity Fund’ will match, ‘at a minimum’, EU structural funds currently supplied to the devolved governments. However, there is suspicion that the UK government will centralise the new fund, thus removing a key area of devolved decision-making. There are also doubts over the fiscal capacity of the UK government to honour its pledge to match the funds as Brexit takes its toll on tax revenues.

Wider constitutional issues

The potential for increasing strain between the Welsh and UK governments is not confined to Brexit. Their visions for the UK constitution differ fundamentally.

The Conservative manifesto talks of ‘One Nation’ and the need to ‘bind the Union together’. While there are proposals for devolution within England and an undertaking to consider the recommendations of the Dunlop Review, the principal constitutional concern is with the present balance of power between the UK government, the courts and the UK Parliament. As well as a ‘Constitution, Democracy and Rights Commission’ to examine ‘the broader aspects of our constitution’, it pledges reform of the Human Rights Act 1998 and judicial review. The Welsh government, by contrast, argues that the UK is a ‘voluntary association of nations’ and demands wholesale reform of constitutional arrangements to reflect this relationship. Like the Scottish government, it opposes reforming the Human Rights Act and has insisted that the consent of the devolved institutions is required for such a change.

Questions around the ‘England and Wales’ justice system – arguably one of the greatest and most harmful of all the UK’s constitutional asymmetries – are also likely to cause strain. Following the unanimous recommendations of the Commission on Justice in Wales, the Welsh government seeks to begin negotiations on the legislative devolution of justice to Wales. The UK government, however, remains deeply wedded to the current system and has so far dismissed the proposal in strikingly casual terms.

What will happen next?

In the short term, no doubt the Welsh government will continue to press UK ministers to proceed on Brexit with the full involvement and consent of the devolved institutions. Tellingly, the Welsh First Minister has already sought to check the Prime Minister’s ‘One Nation’ zeal – ‘the Conservatives are only the largest party in one of the 4 nations’, he argues. It is also likely that the Welsh government will continue to seek leverage through its alliance with a now bolstered SNP-led Scottish government, particularly if the UK government proves unresponsive to devolved interests (though it may be more wary of doing so as the Scottish government pushes for a second referendum). In the longer term, we can expect it to persist in making its case for UK-wide constitutional reform while perhaps continuing to emphasise that its support for the Union is not unconditional, particularly as discussions around Scottish independence and Irish unification intensify.

Confronted with the new faith and power of the Conservative Party, however, ultimately the Welsh government may struggle over the coming years to influence the political decisions which will have a profound impact on the land and people it is elected to govern. We may be about to witness the harsh realities of the present constitutional order in unprecedented ways.

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