Negotiating Brexit in a devolved state: the dynamics of intergovernmental relations

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Theresa May has repeatedly declared her commitment to involving the devolved governments in the Brexit process. In this post, Nicola McEwen discusses the likely dynamics of Brexit negotiations between the UK’s four governments. She argues that if the intergovernmental process fails to give a meaningful voice to the devolved governments this could have serious and long-lasting repercussions for territorial politics across the UK.

 As we ponder the forthcoming Brexit negotiations between the UK government and the EU27, another set of negotiations is already underway. The UK government and the devolved administrations have kick-started a period of intergovernmental relations which promise to be more intense than any that have gone before. This is a high stakes process. The extent to which it gives a meaningful voice to the devolved governments represents the Union’s biggest test since the Scottish independence referendum.

The Prime Minister has frequently declared her commitment to engaging with the devolved governments. After her symbolically significant visit to meet Scotland’s First Minister shortly after she assumed office, Theresa May noted: ‘I have already said that I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50.’ There have been some mixed messages since then, but at October’s plenary session of the Joint Ministerial Committee (JMC) – the first since December 2014 – the PM continued to insist she wanted the input of the devolved administrations in shaping Brexit: ‘The country is facing a negotiation of tremendous importance and it is imperative that the devolved administrations play their part in making it work.’ Quite what part she envisages them playing remains unclear.

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The Wales Bill 2016: a marked improvement but there are fundamental questions yet to be resolved

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Amongst the recent political upheaval, the Wales Bill’s progress through the House of Commons has been somewhat overlooked. Alan Cogbill discusses how the version currently being debated has changed from last year’s much criticised draft bill. He suggests that the new bill is a significant improvement but still leaves fundamental questions unanswered.  

Amidst the excitement and despair of the EU referendum, leadership contests, and the new UK Government, a constitutional measure is hastening through parliament with relatively little attention. The Wales Bill, which puts the legislative powers of the Welsh Assembly on a new footing, and reframes the powers of Welsh ministers, was introduced on 7 June, and has already completed second reading and committee stages in the House of Commons.

The government’s 2015 draft bill ran into heavy criticism, in the Assembly, Commons, and outside. A joint Wales Governance Centre/ Constitution Unit report, which reviewed the draft bill in detail, found it severely flawed. In February then Secretary of State for Wales Stephen Crabb announced a re-think. It fell to his successor, Alun Cairns, to introduce the revised Bill.

The new bill has tried to respond to many of the criticisms made – although its authors have not resisted a little mischief. A new duty on the Assembly to require ‘judicial impact assessments’ of Assembly bills was seen in Wales as importing another (covert) fetter, but it appears not; Alun Cairns said on second reading that appraisals would not give rise to any ‘veto’ by the UK.  The bill is deliberately declaratory in high constitutional matters, but whether it needs to highlight a small and inconsequential item of inter-government relations seems questionable.

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Brexit consequentials: why the UK must involve the devolved governments in the process of leaving the EU

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The shockwaves from Thursday’s earthquake continue to reverberate through the political landscape. The Prime Minister has been toppled, and the existing differences between the UK’s four nations threaten to widen into serious rifts. In particular, the place of Scotland in the UK – supposedly settled for a generation two years ago – is again in question. Akash Paun explains.

Every single local authority area in Scotland voted Remain. Meanwhile, with the exception of London, every region in England voted Leave, as did Wales. Northern Ireland voted narrowly to remain, but with a large minority, mainly from the unionist community, opting for Leave, in line with the preference of Northern Ireland’s unionist First Minister.

The outcome flipped the pattern of the 1975 European Economic Community (EEC) referendum, when England was the most pro-Europe of the four nations, while Scotland and Northern Ireland were more sceptical about the European project. On that occasion, though, EEC membership was supported by a majority in each of the four nations, and a total of two-thirds of all UK voters, so there was no sense in which the outcome was being imposed against the will of any part of the UK.

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The situation today is very different and territorial tensions are running high. Nicola Sturgeon, Scottish First Minister, has already announced that a second referendum on Scotland’s independence is now ‘on the table’ – although Westminster’s agreement would be needed for any such poll. The SNP would only be likely to want to hold such a poll if it was confident of victory – not a given, even in the context of Brexit. But placing the issue back on the table will concentrate minds in Westminster.

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Things flying apart? Analysing the results of the devolved elections

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On 25 May the Constitution Unit invited three electoral experts to give their analysis on the results of the recent devolved elections in Scotland, Wales and Northern Ireland. In this post Artur Foguet Gonzalez summarises their key insights.

 The fifth round of elections to the devolved parliaments and assemblies in Scotland, Wales and Northern Ireland took place on 5 May. On 25 May the Constitution Unit hosted three electoral experts ­– Professors Ailsa Henderson, Roger Scully and Cathy Gormley-Heenan – to digest the results. This post summarises the key points that were raised by the speakers.

Scotland: Professor Ailsa Henderson, University of Glasgow

Scotland awoke the morning after the election to two significant results: the Scottish National Party (SNP) was still the largest party in Holyrood but no longer held a majority, whilst Labour’s decline continued as it fell behind the Conservatives to become the third largest party in Scotland. Ailsa Henderson used her data from the Scottish Election Study (SES) to explain these results.

For the SNP three factors explain their continued popularity: the constitution, valence and leadership. Though the data shows that the constitution is not top of voters’ agenda, it also shows that voters are very unlikely to back a party that does not share their view on independence, so whilst the constitution may not be driving voter choice, it is a constraining factor. The SNP was the only party likely to collect votes from those who had supported independence in the 2014 referendum, whilst No voters were split between multiple parties. On valence, when voters were asked which party they trusted most on particular issues the SNP came top, not only on ‘standing up for Scotland’ but on every single issue. Nicola Sturgeon, meanwhile, remains an extremely popular figure.

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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Seven challenges for the fifth term of devolved government

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Today voters across the UK go to the polls for the fifth time since devolution began in 1999. As further powers are devolved to Scotland, Wales, Northern Ireland and parts of England, government at all levels faces a number of challenges. Akash Paun highlights his top seven.

 

1. Adapting to the new politics of fiscal devolution

A central feature of devolution to date is that the Scottish, Welsh and Northern Irish governments have little control over the size of their budget. Important tax and borrowing powers are now being devolved to all three nations, although the Barnett Formula also survives for now. Fiscal devolution within England is far less developed, but this may change as the voice of cities and regions grows louder and business rate changes come into effect. The result is that sub-national governments increasingly have to make trade-offs between public expenditure, taxation and borrowing, rather than simply deciding how to spend a grant from Westminster. This creates sharper accountability and strengthens their incentives to take policy decisions that boost the tax take.

2. Building devolved capacity to take on new powers

New systems and institutions need to be built to ensure that new powers are effectively managed. In Scotland, the Government is planning a new Social Security Agency to administer devolved welfare benefits. Revenue Scotland – the tax-collection body – may need to expand as further taxes are devolved. Similarly, a Welsh Revenue Authority is being created. Fiscal scrutiny bodies such as the Scottish Fiscal Commission and the planned Independent Fiscal Council for Northern Ireland are also becoming more important. Within England, devolution in areas such as health, justice and transport will require new policy and operational capacity in local areas too.

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The Welsh government’s alternative draft Wales Bill merits careful study

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The Welsh government published an alternative draft Wales Bill on 7 March, following the announcement that the UK government’s draft bill was to be revised following a series of critical reports. This will be one of the first and hardest tasks for Alun Cairns, the new Secretary of State for Wales. In this post Alan Cogbill offers an initial analysis of the alternative bill and argues that it merits careful study in Whitehall.

When the UK government published its draft Wales Bill last October, it ran into a barrage of criticism.  The First Minister of Wales Carwyn Jones expressed frustration at how the UK Government had responded (or not) to Welsh government concerns while the bill was being prepared, and he published extensive correspondence.  It disclosed acute non-meeting of minds between ministers and officials in Cardiff and London – even on technical matters.

The draft bill was heavily criticised elsewhere.  Both the National Assembly’s Constitutional and Legal Affairs Committee, and the House of Commons’ Welsh Affairs Committee, expressed serious misgivings and recommended time to reconsider.  A joint report by the Wales Governance Centre and the Constitution Unit offered a sharp critique, with proposals for radical revision.

Now the Welsh government has published its own draft bill.  It offers it not as a finished product, but a contribution to joint working with the UK government to produce a better bill for parliament to consider – one that will create a clear, robust and sustainable basis for the governance of Wales within the United Kingdom.

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