Brexit and the territorial constitution: déjà vu all over again?

wincottd (1)Brexit has led to conflict between Westminster and the devolved administrations, with the UK Attorney General recently going as far as referring the Welsh and Scottish Continuity bills to the UK Supreme Court. Here Daniel Wincott argues that the Brexit process has highlighted the flaws in the UK’s systems of intergovernmental relations and that action is needed to prevent repeating the mistakes of the past.

The territorial constitution is particularly fragile. Pursuing Brexit, Theresa May’s government has stumbled into deep questions about devolution. The territorial politics of Brexit is a bewildering mix of ignorance, apparent disdain, confrontation, cooperation and collaboration. Rarely have the so-called devolution ‘settlements’ appeared more unsettled.

The UK’s system for intergovernmental relations (IGR) between devolved and UK governments has been hidden in obscurity. Arcane processes – Legislative Consent Memoranda (LCMs – also known as Sewel Motions) and Joint Ministerial Committees (JMCs) – are now more widely discussed.

Brexit has revealed limits and weaknesses in existing devolution structures. UK intergovernmental relations is an unappetising spaghetti of abstruse acronyms, but compared to other multi-level states it is also remarkably informal and limited. Opportunities to develop the system may emerge, but it could also collapse under the pressure of leaving the EU. Continue reading

Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?

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The UK and Scottish governments are engaged in a legal dispute about the Scottish Parliament’s Brexit legislation, leading to the matter being argued before the UK Supreme Court on 24 and 25 July. Akash Paun fears this could be the start of a new phase of conflict between Westminster and Edinburgh.

In July, the UK and Scottish governments squared off at the UK Supreme Court in a case relating to the Scottish Parliament’s EU ‘Continuity’ Bill (the Continuity Bill) and whether or not it is constitutional, in light of the provisions of the Scotland Act 1998.

The purpose of the Continuity Bill is to ensure there is continuity in Scottish law after Brexit. It retains EU law in devolved areas such as the environment and food standards, and creates powers for Scottish ministers to amend the law so it can operate effectively outside the EU. It therefore has a similar purpose to the UK government’s European Union (Withdrawal) Act (the Withdrawal Act), which was passed at Westminster in June, controversially without Scottish consent for the devolution provisions.

The Continuity Bill was passed by the Scottish Parliament in March, but two of the UK Government’s senior Law Officers, the Attorney General and the Advocate General for Scotland, referred the bill to the UK Supreme Court in April. This is the first time a bill passed by a devolved parliament has been challenged in this way. A similar continuity bill for Wales was also passed in March, but it is now being repealed following agreement between Westminster and Cardiff over the terms of the Withdrawal Act. Both the Welsh and Northern Irish governments were represented at the hearing. 

This is a complex case, as more than one of the judges themselves remarked during the proceedings. Judgment is expected in the autumn, and the Continuity Bill could be ruled within or outside the competence of the Scottish government, or it could be referred back to Edinburgh for amendment, in order to make it compatible with UK law. Continue reading

Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’. Continue reading

How the UK and devolved governments can agree on the European Union (Withdrawal) Bill

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With the EU Withdrawal Bill now in the House of Lords, Clause 11 of the bill is expected to be a cause of potential trouble for the government. The Scottish and Welsh governments, as well as the Labour Party, are all currently opposed to the clause as currently drafted and it seems unlikely it will survive the Lords in its present form. Akash Paun explains the concerns of Edinburgh and Cardiff in this blog and proposes a number of possible solutions, each of which will require compromise on all sides.

The UK government is locked in dispute with the Scottish and Welsh governments over Clause 11 of the EU Withdrawal Bill. This clause prevents the devolved administrations from modifying ‘retained EU law’, the term for all the European legislation the bill will bring into domestic law.

The effect would be that all powers exercised in Brussels return to Westminster, at least initially, giving the UK parliament the ability to create binding legal frameworks in place of EU law. The devolved governments say this is unacceptable, and Edinburgh and Cardiff have refused to grant legislative consent to the bill.

The government accepts that Clause 11 needs to be amended, but it has not brought forth alternative proposals, despite promising to do so before the bill left the House of Commons. Meanwhile, the Scottish and Welsh Governments propose that Clause 11 should simply remove the requirement for devolved bodies to act in accordance with EU law. Full control of the 100-plus areas of ‘intersection’ between EU and devolved law would then revert to the devolved level.

In this case, new UK-wide frameworks would have to be negotiated on a case-by-case basis and could not be unilaterally imposed by Westminster. The concern in Whitehall is that this would increase the risks of legal uncertainty and regulatory divergence, and could make it more difficult to implement a new UK-EU economic relationship.

The bill has now entered the House of Lords with the UK and devolved governments still dug into their trenches. Recent reports suggest, however, that a peace deal may be within reach. Continue reading

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

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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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The Scottish government’s Brexit paper suggests that the last thing Nicola Sturgeon wants is an independence referendum

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Yesterday the Scottish government published a detailed policy paper, setting out options for how Scotland could remain in the EU single market following Brexit. In this post Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK  and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

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