{"id":7487,"date":"2018-09-20T11:02:12","date_gmt":"2018-09-20T11:02:12","guid":{"rendered":"https:\/\/sceptical.scot\/staging\/?p=7487"},"modified":"2025-12-26T22:15:24","modified_gmt":"2025-12-26T22:15:24","slug":"devolution-settlement-risk","status":"publish","type":"post","link":"https:\/\/sceptical.scot\/staging\/2018\/09\/devolution-settlement-risk\/","title":{"rendered":"Devolution settlement is at risk"},"content":{"rendered":"\n

The territorial constitution is particularly fragile. Pursuing Brexit, Theresa May\u2019s government has stumbled into deep questions about devolution.<\/strong><\/p>\n\n\n\n

The territorial politics of Brexit is a bewildering mix of ignorance, apparent disdain, confrontation, cooperation and collaboration. Rarely have the so-called devolution \u2018settlements\u2019 appeared more unsettled.<\/p>\n\n\n\n

The UK\u2019s system for intergovernmental relations (IGR) between devolved and UK governments has been hidden in obscurity. Arcane processes \u2013 Legislative Consent Memoranda (LCMs \u2013 also known as Sewel Motions) and Joint Ministerial Committees (JMCs) \u2013 are now more widely discussed<\/a>.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

New Brexit-based rules are likely to impact on devolution. After a long static period, they are now coming thick and fast. Engaging with these issues is challenging \u2013 Brexit and devolution can both be bafflingly complicated. Efforts are being made to support and co-ordinate this engagement<\/a>.<\/p>\n\n\n\n

Negotiating the European Union (Withdrawal) Act 2018<\/strong><\/h2>\n\n\n\n

The Withdrawal Act<\/a>, given Royal Assent on 26 June 2018, is a key plank of UK Brexit strategy. Essentially, the Act domesticates much of EU law, \u2018retaining\u2019 it as part of domestic law.<\/p>\n\n\n\n

The Act strengthens the UK government, providing the executive with wide-ranging powers to issue secondary legislation, or Statutory Instruments (SIs). 800\u20131000 SIs are anticipated. Their range and depth suggests Theresa May expects serious challenges, but Whitehall cannot yet predict fully what form they will take. The process of issuing SIs under the Act began in July 2018. Typically, the time and scope to scrutinise them is limited.<\/p>\n\n\n\n

As first drafted, the Withdrawal Bill proposed to sweep up and centralise powers at the expense of the devolved political systems. Essentially, it sought to move all areas of retained EU law \u2013 including in devolved policy areas \u2013 to Westminster. The UK government seems hardly to have noticed that its proposal to accumulate these powers would ride roughshod over devolution.<\/p>\n\n\n\n

Politicians in Wales and Scotland saw the proposals as a power grab<\/a>. Neither devolved legislature gave consent for the Westminster legislation. Both passed alternative devolved \u2018continuity\u2019 legislation.<\/p>\n\n\n\n

Since September 2017 intensive, if sometimes frustrating, discussions have taken place between governments in Cardiff, Edinburgh, and London. Initially convened by Damian Green, subsequently David Lidington led the discussions for the UK government. Mark Drakeford and Mike Russell represented Wales and Scotland respectively.<\/p>\n\n\n\n

Ultimately, the UK government redrafted the legislation to acknowledge what most Scottish and Welsh politicians see as a key principle of the territorial constitution: where policy was already devolved, EU law should return to the devolved institutions, not Westminster. These changes persuaded the Welsh Government to change its view and consent to the Withdrawal Act<\/p>\n\n\n\n

At the same time, the Act provides for restrictions on the exercise of some important devolved powers for up to seven years. It gives London the authority to write the rules in the restricted areas. Debate over its devolution provisions \u2013 or more precisely the lack of time for debate \u2013 generated acrimony at Westminster. Ultimately, the Scottish government did not feel the change had gone far enough, and withheld consent.<\/p>\n\n\n\n

The contrasting Welsh and Scottish positions on the Withdrawal Act make perfect sense. The devolutionist but ultimately pro-UK Welsh government has sought to \u2018bank\u2019 gains made from the initial position on the Withdrawal Bill. The SNP government in Scotland takes a more robust view. Independence is its ultimate objective. It operates with a stronger form of devolution, has a separate, established legal system, and leads a country with a referendum majority for Remain.<\/p>\n\n\n\n

The UK\u2019s intergovernmental system<\/strong><\/h2>\n\n\n\n

The UK\u2019s devolved system was carefully constructed to ensure that the devolved policies could not breach EU law. As with Westminster, EU laws and principles run right through the fabric of devolution. The framework it provided for devolution was an unintended benefit of EU membership \u2013 a kind of scaffolding that has helped to support and hold together the parts of the UK. EU membership has allowed devolved authorities to pursue distinct policies within a shared framework set outside the UK.<\/p>\n\n\n\n

Such as it was, that system was heavily based on JMCs<\/a>. They ranged from a plenary meeting of the Prime Minister and devolved First Ministers \u2013 JMC(P) \u2013  to meetings of specialist ministers in particular policy fields. But except for EU matters, no specialist formation has survived.  JMC(E) \u2013 for EU policy \u2013 was much the most active committee, until it was superseded by the European Negotiations Committee (JMC(EN)).<\/p>\n\n\n\n

At most, JMC(P) has met once a year. And there were years \u2013 2002\u20132008 and then from late 2015 until towards the end of 2017 \u2013 when it did not meet. Even the relatively active European JMCs have not met at all for significant periods \u2013 the JMC(E) from late 2015 to late 2016; the JMC(EN) from February 2017, shortly after its creation, to September 2017. Even when JMC(EN) meetings were called, the UK government sometimes seemed unprepared to meet. Sometimes the Welsh participants left Cardiff for London without knowing precisely where the meeting was to be held<\/a>.<\/p>\n\n\n\n

Eventually, the JMC(EN) made progress. Alongside changes to the Withdrawal legislation, novel machinery for IGR started to take shape. A new Ministerial Forum emerged below the JMC. And even after it became clear agreement between Westminster and Holyrood was not achievable, Lidington<\/a> \u2018put on record that \u2026 the Scottish Government has engaged for many months in a very constructive fashion\u2019.<\/p>\n\n\n\n

Yet, as the Withdrawal Bill went through its final stages, a sense of d\u00e9j\u00e0 vu took hold. Hostility and mutual incomprehension, not constructive engagement, seemed to be the order of the day.  Some accused Lidington of talking away<\/a> any time to debate the devolution issues. They walked out of the Commons. Conservative MPs laughed them out of the chamber, calling the walk-out a stunt<\/a>. In defiance of convention, May\u2019s government pressed ahead to pass the Act without Scottish consent.<\/p>\n\n\n\n

After the Withdrawal Act<\/strong><\/h2>\n\n\n\n

There is much more Brexit legislation to come. Neither Wales nor Scotland have consented to the Trade Bill<\/a>. Having been overridden on the Withdrawal Act, the Scottish Government is clear it will not give consent to further Brexit legislation on agriculture or fisheries. Withdrawal Act SIs are flooding through the system.<\/p>\n\n\n\n

Scotland and Wales parted ways<\/a> over the Withdrawal Act. Shortly after it passed, May held a Cabinet meeting at Chequers \u2013 and issued a White Paper<\/a> on the UK\u2019s future relationship with the EU. Despite assurances, the devolved governments had not been consulted on these plans. If the Withdrawal Act divided Wales from Scotland, the White Paper brought them back together<\/a>. Where their interests align, the two governments are able to collaborate<\/a>.<\/p>\n\n\n\n

Brexit places devolution at risk. Care, goodwill and constructive engagement is needed from all sides if a workable system of devolution is to emerge after the UK leaves the EU. New pressures are emerging which inherited structures and attitudes will not be able to overcome. New institutions, relationships and \u2013 most of all \u2013 mentalities need to be nurtured. Otherwise we could become trapped in a repeating cycle of periods of effective collaboration on the one hand and episodes of hostility, mutual incomprehension and disdain on the other. Devolution could face d\u00e9j\u00e0 vu all over again.<\/p>\n\n\n\n

This blog originally appeared<\/a> on Cardiff University\u2019s Welsh Brexit blog and then UCL’s Constitution Unit<\/a><\/em> and is reproduced with permission<\/em><\/p>\n\n\n\n

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