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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The report of the Scottish Parliamentary Reform Commission: Westminster as a model for reforming Holyrood?

The Scottish Parliament’s Commission on Parliamentary Reform, established by the Presiding Officer last year, reported in June. Its recommendations include that committee conveners should be elected by the whole Parliament, changes to First Minister’s Questions, the extension of the legislative process from three stages to five and the establishment of a new backbench committee. Ruxandra Serban summarises the report and notes that several of the most substantive recommendations would bring the Scottish Parliament’s procedures closer to those of the House of Commons.

The Commission on Parliamentary Reform was established on 26 October 2016 by the Presiding Officer of the Scottish Parliament, Ken Macintosh MSP. It was chaired by John McCormick, a former Controller of BBC Scotland and UK Electoral Commissioner with special responsibility for Scotland, and included 10 other members: five from civic society appointed by the Presiding Officer, and one nominated by each political party represented in the Scottish Parliament.

The Commission was appointed to review the evolution of the Scottish Parliament in the 18 years since its founding, and to assess its capacity to deal with the additional sets of responsibilities devolved through the Scotland Act 2016 and expected to result from the Brexit process. The Commission convened between November 2016 and June 2017, and sought evidence through meetings and public events, written submissions, oral evidence sessions and an online survey.

The report published on 20 June 2017 makes reference to the set of principles proposed by the Consultative Steering Group (CSG) in 1998 as the key benchmark against which to measure the effectiveness of the Scottish Parliament, and upon which to base suggestions for reform. The CSG was set up in 1997 by the UK government to consider institutional design options for the Scottish Parliament. Its report set out four principles to inform the functioning of the new parliament: power-sharing; accountability; open and accessible participation; and equal opportunities. Since then, some questions have been raised about whether the Scottish Parliament has truly managed to embody the principles of ‘new politics’ envisaged by the CSG, or whether it is in fact a ‘Westminster model’ parliament (notably here and here).

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The 2017 election manifestos and the constitution

Over the past two weeks the political parties have published their manifestos for the snap general election. In this post Chris Caden and Fionnuala Ní Mhuilleoir summarise the constitutional content, covering proposals relating to Brexit, the possibility of a constitutional convention, devolution, House of Lords reform, electoral reform, human rights and freedom of information.

Theresa May’s surprise election announcement left the political parties with the challenge of putting together manifestos in a matter of weeks. The Conservatives, Labour, the Liberal Democrats, the Green Party and Plaid Cymru all published their manifestos in the week beginning 15 May. UKIP followed on 25 May and the SNP on 30 May. With much of the election debate centring on whom the public trust to lead the country through the biggest constitutional upheaval in recent history, Brexit is unsurprisingly covered by all the parties. Attention on other constitutional issues has wavered somewhat as a result, but Labour and the Liberal Democrats both propose a constitutional convention to review aspects of the UK’s constitutional arrangements. The manifestos also lay out a variety of options in areas such as House of Lords reform, devolution, electoral reform and human rights.

Brexit

Negotiating Brexit is a major theme for all parties. The Conservative Brexit commitments include ending membership of the single market and customs union so that a greater distinction between ‘domestic and international affairs in matters of migration, national security and the economy’ can be made. This means negotiating a free trade and customs agreement between the UK and EU member states and securing new trade agreements with other countries. Theresa May’s party aims for a ‘deep and special partnership’ with member states. A successful Brexit deal would entail regaining control of borders, reducing and controlling net migration, but maintaining a ‘frictionless’ Common Travel Area for people, goods and services to pass between Northern Ireland and the Republic of Ireland. The manifesto controversially maintains that ‘no deal’ is better than a bad deal for the UK.

Labour also accepts the referendum result, but rejects ‘no deal’ as a feasible option and envisages something more akin to a ‘soft Brexit’. The party would scrap the Conservatives’ Brexit white paper and replace it with an agreement maintaining the benefits of the single market and customs union; the government’s proposed ‘Great Repeal Bill’ would be replaced with an EU Rights and Protections Bill to ensure no changes to workers’ and consumers’ rights, equality law or environmental protections. The party pledges to immediately guarantee existing rights for all EU nationals in the UK and UK citizens in EU countries, and would also seek to remain part of various research and educational projects such as Horizon 2020, Erasmus and the European Medicines Agency. Additionally, membership of organisations like Eurojust and Europol would be retained. Labour commits to no hard border between Northern Ireland and the Republic of Ireland.

Unlike the Conservatives and Labour, the Liberal Democrats and Greens pledge a second referendum after a Brexit agreement is concluded, which in each case would include an option on the ballot paper of staying in the EU. Preventing a hard Brexit is the first priority for the Lib Dems and as a result the party promises to fight for the continuation of UK membership of the single market and customs union. It also pledges to protect the rights of EU citizens living in the UK and UK citizens abroad, to maintain UK participation in the Erasmus+ programme and other EU-funded schemes, and to retain the European Health Insurance Card. The Greens set out a similar agenda.

The SNP wishes to mitigate what they see as the damage of Brexit with the proposal that Scotland should remain in the single market. The party seeks additional powers for the Scottish government including powers that will be repatriated from Brussels to the UK like agriculture, fisheries, environmental protection and employment law. Plaid Cymru, meanwhile, pledges to make sure ‘every penny’ of European funding for Wales is replaced by the UK government and that the Welsh share of the money promised by the Leave campaign (referring to the £350 million for the NHS) is delivered. It also demands that the UK government seeks the endorsement of each UK devolved legislature before any trade deal can be signed.

UKIP supports leaving the single market, the customs union and the European Court of Justice. The manifesto outlines that no ‘divorce’ bill should be paid to the EU and that Brexit negotiations will be complete by the end of 2019.

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‘Nationalism should not be confused with patriotism’ – Ruth Davidson delivers the Orwell Prize Shortlist Lecture

On 15 May Scottish Conservative leader Ruth Davidson delivered this year’s Orwell Prize Shortlist Lecture, co-hosted by the Constitution Unit. In the lecture Davidson set out a distinction between ‘patriotism’ and ‘nationalism’, arguing that although many political movements try to ensure that they get confused the two are profoundly different from one another. Thomas Romano reports.

The Orwell Prize is Britain’s most prestigious prize for political writing, awarded every year since 1994 in three categories: one for the best political book, the others for journalism and for ‘Exposing Britain’s Social Evils’. The Prize is awarded to the authors who come closest to Orwell’s ambition ‘to make political writing into an art’. On 15 May the shortlists for the 2017 Prize were announced, the last step before the proclamation of the winners on June 15. The event for the shortlist announcement was co-hosted by the Constitution Unit and the Orwell Foundation with the annual Shortlist Lecture given by Scottish Conservative Leader Ruth Davidson.

The choice of Davidson was in some ways surprising. As she herself noted in her speech, Orwell was ‘a man of the left’. As a matter of fact, Davidson was the first Conservative politician to give the shortlist lecture. Joking, she said that she did not expect him to agree on the choice.

In her speech, however, Davidson chose to draw inspiration from one of Orwell’s works that she could relate to. She drew inspiration from an essay written by Orwell in May 1945, in the immediate aftermath of the Second World War, called Notes on Nationalism. Here, Orwell speculates on some of the driving forces behind the nationalisms, and describes some features of what Davidson named the ‘politics of identity’. As leader of the Scottish Conservative Party, Davidson campaigned for Scotland to stay in the UK in the 2014 Scottish independence referendum, and her party has more generally been a historic supporter of the Unionist case in Scotland. This has placed her in sharp contrast with Nicola Sturgeon’s Scottish National Party.

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A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

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A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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