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.

Continue reading

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.

Continue reading

Brexit, federalism and Scottish independence

seema-photo

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.

Continue reading

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

nm

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.

Continue reading

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

Cogbill

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.

Continue reading

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

Akash.Paun-70

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.

1975-2016-Referendums-by-nation-for-Akash-with-labels

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.

Continue reading

Things flying apart? Analysing the results of the devolved elections

IMG_1095

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.

Continue reading