Politics, courts and the UK’s single market

image_preview.jpgBrexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.

Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.

For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.

On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. Continue reading

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. Continue reading

Towards a Devolution Backstop? UK government-devolved government relations after Brexit

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Two years after the invocation of Article 50, Nicola McEwen analyses the state of relations between London and the devolved administrations, warning that if Brexit damages the autonomy of the devolved institutions without increasing their influence, relationships between the UK’s territories may become ever more strained.

The Brexit process has undoubtedly brought about an upswing in engagement between the UK and devolved governments. Leaving aside the Joint Ministerial Committee (Europe) which since 1999 has met ahead of European Council meetings, there have been considerably more formal meetings between Scottish, Welsh and UK ministers in the 32 months since the 2016 referendum than in the 17 years of devolution that preceded it. In 2016, a Joint Ministerial Committee for EU Negotiations — JMC (EN) — was set up to foster intergovernmental collaboration and provide oversight of EU negotiations. Last year, a Ministerial Forum for EU Negotiations was set up to consider more detailed Brexit effects in particular policy spheres.

For most of the time since the referendum, Northern Ireland has not had a governing executive and so it hasn’t had a voice in interministerial meetings. Ministers from the Scottish and Welsh governments, by contrast, have had ample opportunity to make their voices heard. Whether the UK government is listening is another matter.

The devolved governments have had most difficulty in influencing the UK’s negotiating position with the EU. The Scottish government opposes Brexit in all forms – a position reflecting the big Remain vote in Scotland in 2016. The next best thing is continued membership in the EU single market and customs union. While respecting the narrow Leave majority in Wales, the Welsh government, too, has favoured continued membership in the single market and customs union. But, despite the JMC (EN) terms of reference committing the governments to seek ‘a common UK approach’ to Brexit, the devolved governments have had little impact in shifting the Prime Minister’s red lines. The UK approach to Brexit, it seems, is the UK government’s approach alone. Continue reading

Intergovernmental relations: a blueprint for reform

downloadSince the Brexit referendum in 2016, the case for an overhaul of the management of intergovernmental relations has become much stronger. Jack Sheldon explains that in a new report, he and his colleagues have advanced the first detailed proposals for reform of the existing arrangements. These include formalising and restructuring the current ad hoc system, implementing a method of consensus decision-making, and increasing the transparency of the system.

It is widely agreed that the ad hoc and under-developed arrangements for relations between the UK government and the devolved governments in Scotland, Wales and Northern Ireland are in urgent need of an overhaul. Even before the vote to leave the EU, several parliamentary committees, leading politicians and a number of constitutional experts called for reform. Since 2016 the case has only become stronger. Brexit-related ‘IGR’ has been marked by sharp disagreement over policy and process, against the background of low trust between governments. And it is envisaged that IGR will assume greater importance in the coming years, given the need to implement, govern and review ‘common frameworks’ in devolved areas currently covered by EU law.

In a new report Professor Nicola McEwen, Professor Michael Kenny, Dr Coree Brown Swan and I advance proposals for reform of the Joint Ministerial Committee (JMC) structure – the primary forum within which formal IGR takes place. While the need to renew the JMC has frequently been recognised in recent years, few detailed proposals have been made. We seek to fill this gap, setting out 27 conclusions and recommendations. Our report is also distinctive in drawing heavily on experience of IGR in five broadly comparable multi-level political systems – Australia, Belgium, Canada, Italy and Spain. We were invited to produce the report by officials in the UK and devolved governments who are currently working on a review of IGR commissioned by the JMC itself, and hope that our conclusions will help to shape thinking as the review proceeds.

Principles of IGR

Existing principles underpinning intergovernmental relations, as articulated in the Memorandum of Understanding on devolution, are broadly stated and prone to being interpreted very differently by the various parties involved. For example, what amounts to ‘good’ communication and what is ‘practicable’ with respect to information exchange are matters of (often diverging) judgement. Continue reading

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