Deal or no deal, the UK government needs a new strategy for the Union

_MIK4650.cropped.114x133Almost seven months after the EU and UK agreed to extend the Article 50 process, a new Brexit deal has been agreed. Akash Paun argues that whether the new deal passes parliament or not, the Brexit process so far has demonstrated that the UK government needs to change its strategy for maintaining the cohesion of the Union.

In his first public statement as prime minister, Boris Johnson made two constitutional pledges that stand in tension with one another. On the one hand, he promised to strengthen the UK, which he described as ‘the awesome foursome that are incarnated in that red, white and blue flag, who together are so much more than the sum of their parts.’ But in the same speech, he reiterated his determination to take the UK out of the EU by 31 October ‘no ifs, no buts’ and, if necessary, no deal. Brexit has already strained relations between the UK and devolved governments. A no deal departure would make matters even worse, and would run directly counter to the PM’s ambitions to strengthen the Union.

The Scottish and Welsh governments strongly oppose leaving the EU without a deal. In a joint letter to the prime minister in July, the Scottish and Welsh first ministers argued that ‘it would be unconscionable for a UK government to contemplate a chaotic no deal exit and we urge you to reject this possibility clearly and unambiguously as soon as possible.’ The Scottish Parliament and Welsh Assembly have also explicitly voted against no deal.

The Scottish Government intends to seek Westminster authorisation for a second independence referendum in any case, but this plan may be accelerated if the UK leaves the EU with no deal, at least if the polls look promising for advocates of independence. The Welsh Labour government is committed to making the Union work, but faces a challenge from the pro-independence Plaid Cymru. First Minister Mark Drakeford has expressed his ‘dismay… at the carelessness with which the new UK government has treated the future integrity of the Union,’ and warned that Wales’ commitment to the Union is not unconditional.

In Northern Ireland, meanwhile, a no deal Brexit would make it even more difficult for power-sharing between unionists and nationalists to be restored. The DUP and Sinn Féin are diametrically opposed on Brexit, and no deal would drive them further apart. The UK is likely to impose direct rule in this scenario, to ensure that ministers have the necessary powers to respond to any economic and security challenges that arise. This, coupled with the hardening of the Irish border, is likely to bolster the nationalist case for a ‘border poll’ on Irish unification (for more on this see the Unit’s blog and report on how such a border poll might be affected by Brexit and the questions that need to be answered before it can happen).

For these reasons, a new Institute for Government report on No Deal Brexit and the Union concludes, a no deal Brexit would be a high-stakes gamble with the future of the Union. These risks were recognised by Theresa May, who was reported to have ruled out no deal specifically because of its potential to destabilise the Union.

Westminster and Whitehall need to change their approach to devolution

If Boris Johnson is serious in his commitment to the Union, then he will need to develop a new strategy for managing the territorial constitution. This will become particularly urgent in a no deal scenario, but it is necessary whatever happens with Brexit.

Two decades after devolution, the UK is best understood as a voluntary partnership between its four nations, each of which has the right to self-determination. That does not mean the devolved nations are entitled to declare unilateral independence overnight. If there is to be another ‘indyref’ in Scotland then this must be the product of agreement between Westminster and Holyrood. Similarly, an Irish border poll should only take place once there is a clear plan for reunification, including for how the interests of the unionist community would be protected in a united Ireland. But it does mean that if the Union is to survive, it must be because a majority of people in all four parts of the UK are persuaded that its survival is in their interests.

The UK government will therefore need to provide assurance to the devolved nations that their interests and autonomy will be protected. Devolution left intact the principle of parliamentary sovereignty, meaning Westminster can make and unmake any law. But devolved autonomy was protected via the Sewel Convention, under which consent is sought for UK legislation that affects devolved areas or amends the devolution settlements.

The status of the convention is in limbo following the passage, without Scottish consent, of the EU Withdrawal Act 2018, which empowered UK ministers to impose new constraints on the Scottish Parliament. The Scottish Government consequently refused to consider consent for any other Brexit legislation, including the trade, agriculture, fisheries and immigration bills that are due to reintroduced to parliament soon. The Sewel convention will need to be revived and reformed, with stronger guarantees that Westminster will not rewrite the rules of devolution without agreement.

At a more practical level, the UK government should improve how it takes devolved views into account when policy and legislation are developed. To make this happen, the government should step up its investment in Whitehall’s devolution capability. This has long been acknowledged as a necessary task and some useful steps have been taken, such as a dedicated devolution training campaign created after the Scottish independence referendum. But there is much more to be done, as a government review led by Lord Dunlop is expected to conclude later this year.

Departments should also be held accountable for how they engage with devolved counterparts. Another post-2014 innovation was that departments were asked to develop ‘devolution capability plans’ that set out their approach to devolution and the systems that they were developing to improve relations with the devolved bodies. It is not known whether these plans still exist. It is also difficult to assess their impact because none were published. But the principle underlying them was a good one. Each department should set out its approach to devolution, ideally in a public document. There should be accountability for implementation of these plans, with scrutiny by parliamentary committees and assessment by the Cabinet Office, drawing on feedback from devolved counterparts and other stakeholders.

In addition to these capability issues, the UK government should accelerate work on the review of intergovernmental relations (IGR), in partnership with the devolved administrations. This review was announced in 2018, but it has made little visible progress, aside from the publication of a set of aspirational principles in the summer. It is clear, however, that resetting IGR for the post-Brexit Union is a pressing task, especially in a no-deal context in which decisions will need to be taken between the different governments more urgently. In particular, new systems for joint decision-making and dispute resolution will be required for common frameworks in areas currently governed by EU law. Likewise, UK ministers should take seriously the need to involve devolved counterparts when future negotiations take place on trade and other international agreements that will affect devolved competences.

Brexit has already proved a serious test for devolution. As the UK finally takes a decision about its place in Europe, it must also rethink the nature of its own domestic Union and the relationships between the nations of these islands.

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This post first appeared on the blog of the Centre for Constitutional Change and is cross-posted with permission of the author. 

About the author

Akash Paun is a Senior Fellow of the Institute for Government, and an Associate Fellow of the Centre on Constitutional Change. He is a co-author of No Deal Brexit and the Union, published on 16 October 2019 by the Institute for Government. He tweets as @akashpaun



Northern Ireland and a border poll: hard truths

Alan_Rialto2 (1)The Brexit issue continues to fuel speculation about the prospects of Irish unity following a border poll. Here Alan Whysall, Senior Honorary Research Associate at the Constitution Unit, author of the Unit’s paper on the subject published in March, and a member of the working group bringing in colleagues from Belfast and Dublin that will look further at the implications of a poll, warns that there are serious dangers looming here for both parts of Ireland – as well as the British government and the wider UK.

The potential breakup of the UK is now spoken about more often than it has perhaps been since the 1920s, fed by the heated politics of Brexit and by evolutions in opinion revealed in polling in Northern Ireland (and Scotland). Some polling in England suggests a willingness to contemplate this, especially if it is the price of Brexit. The subject is sometimes raised rather matter-of-factly in discussion in Great Britain, on an apparent assumption that quick and clean breaks are possible. 

In the case of Ireland, at least, this is not so. There are a number of hard realities meaning that any process of Irish unity is likely to be drawn out, and at all stages capable of tipping over into heightened tensions, instability and conflict. And hence a serious preoccupation for the UK, as well as for Ireland. The situation requires handling with extreme care and sensitivity, and not least from London. But its conduct in the last few weeks has all tended to exacerbate the situation.

This blog sets out some of the realities and pitfalls – and why the latter are at present becoming more likely and more serious.

Northern Ireland has a right to leave the UK on the basis of the majority vote

Northern Ireland differs from other parts of the UK in that there is a principle already established in political agreements and in international law that it should leave the UK and become part of a United Ireland in certain circumstances – if a majority of its inhabitants voting in a poll, and the majority also in the rest of Ireland, is in favour. This is a cornerstone of the Good Friday Agreement, and embodied also the parallel Treaty between the UK and Ireland.

And there is a mechanism to bring the principle to life: the Secretary of State for Northern Ireland, with parliamentary approval, must call a referendum (usually called in Northern Ireland a ‘border poll’) at any time it seems likely that a majority would favour Irish unity. 

Continue reading

Unionism and the Conservative Brexit deal rebellion

jack_sheldon.1image_normalThis week, MPs voted in favour of renegotiating the parts of the Withdrawal Agreement that relate to the ‘backstop’. The backstop and the land border between the UK and Ireland has been one of the most divisive Brexit issues for the Conservatives. Jack Sheldon and Michael Kenny discuss what this tells us about the party’s attitude to the Union.

‘Something ghastly called UK(NI) has been created. Northern Ireland will be under a different regime. That is a breach of the Act of Union 1800’. Owen Paterson MP

I am concerned about the prospects of a Northern Ireland that risks being increasingly decoupled from the United Kingdom, and about how that could undermine the Union that is at the heart of the United Kingdom’. Justine Greening MP

‘I would really like to support the deal of this Prime Minister and this Government, but the issue for me is the backstop. I served in Northern Ireland and I lost good colleagues to protect the Union. I will not vote for anything that does not protect the Union’. Sir Mike Penning MP

Concerns about the implications of the Irish backstop for the integrity of the domestic Union contributed significantly to the scale of the 118-strong backbench rebellion that led to Theresa May’s Withdrawal Agreement being defeated on 15 January, by the extraordinary margin of 432 to 202. Following a debate and vote on 29 January, the Prime Minister has now committed to seek legally binding changes to the backstop, in the hope that this might win over at least some of the rebels before the next vote.

What do the arguments that have been made about the backstop tell us about the nature of the ‘unionism’ that prevails in the contemporary Conservative Party? This is a pertinent question, given that the sincerity of professed support for the Union from Conservatives has regularly been called into question by academic and media commentators in recent years, with increasing numbers of critics suggesting that leading figures from the Tory Party have harvested ‘English nationalist’ sentiments and are willing to put the future of the Union at risk. Continue reading

Challenges to good government in Northern Ireland: charting a future course

alan_rialto2-1The first part of this blog looked at Northern Ireland’s troubled experience with government without ministers for the last year and a half; while the Renewable Heat Incentive Inquiry offered colourful but not uplifting revelations about the way it had been conducted under devolution; and Westminster’s conduct of its responsibilities was widely questioned. Alan Whysall asks what lies behind these problems?

A lack of interest in good government and public policy has long been part of the Northern Ireland political culture. The dialogue in politics and the media has always readily reverted to the traditional issues – and more now that the parties are not constrained by the need to work together.

Partly, this illustrates the seriousness of the political and community divide that politics must seek to bridge. But the reflection of that divide in the structure of politics in Northern Ireland also means that no alternative government is on offer during elections, so misconduct in government is harder for the electorate to sanction. If the great priority of most electors is to support their community’s champion against the other side, the detail of the champion’s conduct in government gets lost. Continue reading

The Good Friday Agreement at 20: what’s next for Northern Ireland?

Alan_Rialto2 (1)Yesterday, in the first of two blogs on the Good Friday Agreement, Alan Whysall discussed where the Agreement had gone wrong and the benefits it has brought Northern Ireland since it was signed in April 1998. In this post, Alan looks at the future of the Agreement, a document he was involved in negotiating and implementing during his time as a civil servant at the Northern Ireland Office.

As conflict with the EU mounted over the Northern Ireland issue, some pro-Brexit voices in Great Britain began to argue that the Good Friday Agreement (‘the Agreement’) had ‘run its course’. They proposed no alternatives, however, for a position that broke a 20 year consensus in mainstream British politics.

Few in Northern Ireland, beyond established ultras, have gone so far. But some, predominantly unionists, argue in the short term for direct rule; some for changes to the mechanisms of the Agreement. There is also increasing talk of a border poll opening the way to a united Ireland.

Direct rule

Some see direct rule from Westminster as a good government safety net that Northern Ireland can fall back on, as in the past. From one perspective, it is remarkable that has not happened. Extraordinarily, no one has been in charge of government for over a year, as though having government is discretionary. The civil service carries out the administration on the basis of established policy, in a legal quagmire.

Nonetheless the British government has resisted the temptation to reinstate full-blown direct rule. This is understandable, as its own role would be seriously contested, given its dependence on the DUP for a Commons majority; so would the role the Agreement foresees for the Irish government. Most damagingly, it might be seen as the end of efforts to revive the institutions, unleash further negativity and probably drive the best people from politics. Direct rule, once turned on, is hard to turn off.

The present situation cannot endure indefinitely. At some point, much more government will have to be done. Continue reading

The Good Friday Agreement at 20: what went wrong?

Alan_Rialto2 (1)The Good Friday Agreement (also known as the Belfast Agreement) is 20 years old today, but recent events in Northern Ireland have shown that power-sharing has proven a difficult exercise. Alan Whysall, who was involved in the negotiations that led to the Agreement as well as its implementation, examines what has gone wrong since the Agreement was signed. A second blog, to be published tomorrow, will discuss what can be done to get the Agreement back on track.

Today marks the 20th anniversary of the signing of the Good Friday Agreement, (‘the Agreement’),  but the system of power-sharing government it established in Northern Ireland has not functioned for over a year. It was widely seen in Britain, as elsewhere, as a significant act of statesmanship, supported by both main parties. But it now appears at risk, as the Irish border becomes a critical issue in the Brexit negotiations.

What has gone wrong?

The Agreement was a political construct to underwrite the ending of a conflict and address the divided politics of a divided society. Progress in those three areas – conflict, politics and society – is interlinked. There was a hope that the division would reduce. In society it has, to some degree, though the progress is now in danger; in politics, less so.

The Agreement covered a wide range of matters besides devolved power-sharing government, but the main focus has been on that issue. The institutions were troubled from the start. Power-sharing government was not established until late 1999. Dogged by unionist reluctance to be in government with Sinn Féin while the IRA continued in being, it collapsed in late 2002. Five years’ direct rule followed, during which the IRA declared its war over and decommissioned weapons, and political negotiations culminated in the St Andrews Agreement of 2006 (with minor changes to the Agreement institutions). Re-established in 2007, the institutions functioned for 10 years.

Sinn Féin pulled out of the Executive in January 2017 citing lack of ‘respect’ from the DUP, essentially around Irish identity. Its key demand became an Irish Language Act, much debated though little defined by either proposers or opponents. Political negotiations appeared to be leading to agreement in February this year, when the DUP abruptly pulled out, its base apparently unhappy at the prospect of the (rather modest) language legislation proposed in the draft text.

DUP figures now speak of restored devolution being impossible this year; no further negotiations are in prospect. The new Secretary of State, Karen Bradley, has brought forward legislation at Westminster on the Northern Ireland budget.

Since last January, opinion in Northern Ireland is much polarised; the rhetoric of the parties, and to some degree the print media, has plunged into a partisan downward spiral. The spirit of partnership that was once to the fore in politics, and at times won votes, is withering, with few vocal proponents in the political realm. Continue reading