Almost 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.