Options for an English Parliament: implications for the UK’s central institutions

Jack.000meg_russell (1)A Constitution Unit project has been examining options for an English Parliament. One factor that must be taken into account is implications for the UK’s central political institutions. Focusing on the separately elected model for an English Parliament, in this post Jack Sheldon and Meg Russell suggest that there would inevitably be substantial implications. Both the UK government and parliament would need restructuring, and there would be pressures to move towards more formal federalism.

Since autumn 2016 we have been working on a research project exploring options for an English Parliament. Various earlier posts have covered some of our findings, and our detailed report will be published very shortly. In this post we summarise some of our conclusions on implications for the UK’s central political institutions, including the UK government and parliament. We suggest that, in contrast to the relatively modest changes at the centre that resulted from devolution to Northern Ireland, Scotland and Wales, an English Parliament would require substantial institutional restructuring.

For the sake of simplicity we assume here that an English Parliament would mirror arrangements in the existing devolved areas – that is, a directly elected body to which an executive headed by a First Minister would be accountable. Our report will also consider the implications of the dual mandate model for an English Parliament, under which the English legislature would be composed of Westminster MPs for English seats. While some of the issues covered here do not apply to that model, our report discusses how it too would have major consequences for the centre.


A necessary starting point in considering implications of an English Parliament is the powers that would be retained at UK level. Policy powers and financial arrangements for an English Parliament were covered in a previous blog post; in summary, its policy powers would probably be similar to those of the devolved legislatures in Northern Ireland, Scotland and Wales. Given the design of UK devolution, with policy areas such as education and health almost entirely devolved, this means that the legislative competence of the UK parliament would reduce very substantially. Continue reading

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill


The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

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Northern Ireland talks: is a deal in prospect?

Northern Ireland remains without a government. Dialogue has resumed, but the climate is conflictual, and exacerbated by Brexit. The foundations of the Good Friday Agreement may now be seriously shaken. There is some talk of a deal being in prospect, but room for doubt that anything lasting can be achieved. Alan Whysall provides an update and suggests that handling of Northern Ireland once again needs the priority, care, understanding and courage it received from previous governments.

My previous blog set the scene: two polarising elections – to the Northern Ireland Assembly and then Westminster – have failed so far to restore devolved government, following its collapse at the beginning of the year; rather, they reinforced the position of the two big parties, the DUP and Sinn Féin, at the expense of moderates. The nationalist vote, which had been shrinking, has bounced back, which along with the prospect of Brexit has renewed the focus of Irish nationalism on unity. Since Sinn Féin do not take their seats in the Commons and the SDLP no longer has any seats, it is now without any nationalist voice.

Where are we now?

At Westminster, following the election, the Conservative party and DUP reached a confidence and supply agreement. The DUP will support the government throughout this parliament on votes on confidence and finance, as well as Brexit and national security. However, the DUP are to ‘have no involvement in the UK government’s role in political talks in Northern Ireland’. The government will provide extra funding for Northern Ireland totalling about £1 billion over the coming years. It seems to be linking the extra spending to resumed devolution, the DUP denying such a linkage. The deal has been much criticised, Moody’s citing it among reasons for downgrading the UK’s debt rating. Gina Miller and others are mounting a legal challenge, with unclear prospects of success.

Meanwhile the civil service in Northern Ireland, with no ministers to give it direction, aims to ensure ’business as usual‘, but is unable to launch significant new programmes, projects or policies. No budget has been set for this year. The Secretary of State has laid down ‘indicative’ allocations, presumably by way of giving political cover, since he does not have legal authority of any kind over the devolved domain.

According to the Secretary of State, if the situation ‘is not resolved within a relatively short number of weeks will require greater political decision-making from Westminster… to begin with legislation [for] a Budget”.

In that context, he would consider whether Assembly members should still be paid, since they do not meet – one of the few levers the government really has. The DUP leader Arlene Foster, though, found this offensive. Is this a veto?

The Secretary of State spoke of a ‘glidepath’ to greater UK government intervention, implying perhaps, though he did not use the term, a reversion to direct rule, the classic regime of which was considered in an earlier blog.

Strains are emerging between the British and Irish governments over this: after the Irish foreign minister Simon Coveney said there could be no British-only direct rule, the British government sharply riposted that there would be no joint authority, which Coveney had not suggested. Some saw the hand of the DUP here. Under the Good Friday Agreement, the minister is right – Dublin would have substantial rights to make representations about British government actions during direct rule, though without prejudice to sovereignty.

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A reset of intergovernmental relations on Brexit is needed to break the deadlock over the EU Withdrawal Bill

The EU Withdrawal Bill has exacerbated the already serious tensions between the UK and the devolved governments over Brexit. Akash Paun argues that the underlying problem is a lack of trust between the governments, and that to break the deadlock there must be a revival of intergovernmental mechanisms and compromise on all sides.

The EU Withdrawal Bill will take the UK out of the European Union while providing that all European law be imported into domestic law to avoid a regulatory black hole after Brexit.

The bill creates wide-ranging powers for ministers to amend this huge body of ‘retained EU law’ to ensure it will be ‘operable’ outside the EU and to reflect the terms of the withdrawal agreement.

In Edinburgh and Cardiff, there are serious concerns about the impact of the bill on devolution and on the balance of power within the UK. The Scottish and Welsh Governments have announced that they oppose granting the bill devolved consent, which Whitehall recognises should be sought under the Sewel convention.

The EU Withdrawal Bill sets a default that EU powers return to Westminster

The central point of contention is clause 11. At present, the devolved parliaments cannot pass legislation that is incompatible with EU law. Clause 11 replaces this constraint with a new provision preventing them modifying the new category of ‘retained EU law’.

This means all powers currently exercised at EU level will initially flow back to Westminster. There is further provision for some of these powers to be ‘released’ to the devolved level, but at the discretion of UK ministers.

The Whitehall view is that new frameworks will be required to coordinate policy currently held constant across the UK by EU law in areas such as environmental regulation, agricultural policy, state aid and aspects of justice and transport.

These frameworks might be needed to prevent new barriers to economic activity within the UK, to ensure the UK can strike comprehensive trade deals, to comply with international obligations or to manage common resources such as fisheries.

A long list of policy domains where EU and devolved powers intersect has been published. For Scotland there are 111 areas mentioned. But the extent to which new frameworks will be needed is unclear.

This is partly because the terms of exiting the EU remain unknown and if the UK remains within some EU frameworks, the devolution question will be (largely) moot. But it is also because the government failed to think through these complex questions before triggering Article 50 and is now in a race against the clock.

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The European Union (Withdrawal) Bill: legal implications for devolution

The European Union (Withdrawal) Bill will begin its second reading in the House of Commons today. In this post Stephen Tierney considers the bill’s legal implications for devolution, noting that as currently drafted it will be almost impossible to articulate the boundaries of devolved competence once the Act has come into force.

The European Union (Withdrawal) Bill (‘the bill’), introduced into parliament on 13 July, will begin its second reading in the Commons today. Already constitutional problems are piling up, not least a potential impasse with the devolved legislatures. The bill has been called ‘a naked power-grab’ and ‘an attack on the founding principles of devolution’ in a joint statement by the First Ministers of Scotland and Wales. They also made clear that they will not recommend legislative consent for the bill as it stands. Michael Keating has addressed the policy implications of the bill on this blog. In light of discussions with UK and devolved parliamentary committees and other policy-makers over the summer, this post will consider the legal implications of the bill for the territorial constitution, in particular the changes it makes to devolved competence and the ramifications of the enormous secondary powers given to UK ministers.

The bill (clauses 10 and 11), makes provision for devolution, amending the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 in order to circumscribe closely the exercise of devolved powers in relation to the UK’s withdrawal from the EU. These provisions need to be read in light of two other sets of provisions within the bill. Those which seek to convert EU law into domestic law (clauses 2-6); and those which give powers to UK ministers and to the devolved administrations inter alia to change ‘retained EU law’ and to give effect to the withdrawal agreement by way of secondary powers (clauses 7-9).

Altering competence

All of this requires some brief contextualisation. The bill will of course repeal the European Communities Act 1972 (‘the ECA’) and end the supremacy of EU law across the UK. But in doing so, it will not expunge the vast body of EU law from the statute book. Instead it converts EU law as it exists at the moment of the UK’s withdrawal into domestic law; creating the new category of ‘retained EU law’. The competence of the devolved legislatures will upon passage of the Withdrawal Bill be redrawn by this category of ‘retained EU law’. Clause 11, in amending the three main devolution statutes, in effect puts ‘retained EU law’ beyond the competence of the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. For example, the existing provision in the Scotland Act 1998 (s.29(2)(d)) that denies the Scottish Parliament competence to legislate incompatibly with EU law, is replaced with an equivalent restriction in relation to ‘retained EU law’.

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To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

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A new approach to deadlock in Northern Ireland

After Northern Ireland’s political parties missed the latest deadline for reaching an agreement to restore devolved government, the current Assembly crisis is now the longest for over a decade. In this post Brian Walker suggests a new approach that might help to break the deadlock.

Standing back, it’s easy enough to see why the latest Assembly crisis is the longest and most intractable for over a decade. Unusually in recent times and in sharp contrast to the heady days of the Good Friday Agreement (GFA), this breakdown is set against a background of momentous upheaval which, typically, the local politicians have rushed to exploit for their own causes. For the DUP, Brexit revives the prospect of a physical border which in whatever final form confirms the fact of the Union. For Sinn Féin the prospect of Northern Ireland remaining in the EU as part of a united Ireland opens up a new route to the elusive old destination. Both parties now enjoy uncertain leverage in the two parliaments of their allegiance where minority governments uncertainly rule.

If Sinn Féin’s narrative of a people’s surge of rebellion against DUP intransigence is not entirely convincing, it cannot be denied that events outside have given fresh impetus to the struggle for Northern Ireland’s constitutional future. Internally, the frustrations of power sharing by which the winning parties are always denied the fruits of clear victory might otherwise have been contained, had it not been for a remarkable coincidence of the green energy fiasco and the fatal illness of Martin McGuinness. For Sinn Féin the chance of exploring whether Assembly elections could become one more useful stage in an unending series of mini-referendums to create momentum for a border poll was too good to miss. In the short run the tactic has not delivered, but the contest may become all the keener with the impending emergence of a Catholic voting majority. All election victories look like becoming marginal from now on and the prospect of a well functioning Assembly all the more uncertain. Or so it appears at the moment. As recently as May last year it all looked rather different.

The shortcomings of the UK government

Faced with the collapse of the Assembly, the British government’s attitude  was curiously passive until almost the last minute, compared to the close engagement of earlier years when in a high pressure environment prime ministers presided, ears were constantly bent and many draft proposals circulated. Even after making due allowance for mediation fatigue, this looks like a fundamental error, though whether out of calculation or incompetence is unclear. It is not enough to claim – rightly – that the government have bigger things to worry about: they usually do. For under the guise of respecting devolution (interestingly also the reason given for denying Northern Irish women abortions on the NHS in England and now overthrown), a Conservative pattern of relative disengagement since 2010 has weakened the British government’s authority and exposed a loss of touch. Secretary of State James Brokenshire’s impartiality was compromised from the moment he complained about legal action against ex-soldiers in January. He appeared to care more about the Tory cause of shielding them from possible prosecution than his essential role as a minister.

As an organising principle for the talks, the split between devolved and non- devolved matters, with the former chaired by the apolitical figure of the head of the civil service, was a pointless distinction.  While insisting on the sovereign power’s prerogatives, Brokenshire exercised them very little. The present government’s line on Brexit already placed them on the opposite side from nationalists in Scotland and Northern Ireland whose ultimate aim is to dismantle ‘the precious, precious Union’ they are pledged to defend. Might that have been a reason for letting the locals get on with it? The Secretary of State’s role as the judge of a majority in favour of a border poll is  therefore unlikely to survive unchallenged.

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