10 May 2019

The UK’s uneasy devolution settlement is feeling the strain of Brexit

By Akash Paun

Twenty years ago, devolution transformed how Scotland, Wales and Northern Ireland are governed. New institutions in Edinburgh, Cardiff and Belfast gained wide-ranging powers over legislation, spending priorities, and public services.

Devolution is now established as a permanent part of the UK constitution. But in their first two decades, the devolved settlements for each nation have been anything but settled.

In Northern Ireland, power sharing between unionists and nationalists has stopped and started several times. The latest collapse came in 2017 – and there has been no devolved government in Belfast since.

Scotland started with the most fully-developed settlement, but it too has changed significantly as tax, welfare and other powers have been devolved. Wales has played a game of constitutional catch-up. The Welsh Assembly only gained the power to pass its own legislation, without Westminster consent, in 2011. It has also taken on additional powers, though fewer than Scotland. England, meanwhile, has mostly been ignored in the devolution process.

As devolution enters its third decade, further change seems inevitable, as the Institute for Government discusses in our new report on Devolution at 20. One big challenge is to agree how to replace European law in areas that are devolved in principle but constrained in practice by EU regulations and directives. Government analysis has identified 160 such areas across 10 Whitehall departments, including aspects of environmental regulation, transport, health and justice policy.

In most of these areas, ministers agree that full control will flow back to Edinburgh, Cardiff and (if devolution resumes) Belfast, allowing each part of the country to go its own way – albeit subject to the terms of the future UK-EU relationship.

But in 21 areas the Government believes new UK-wide laws (or ‘common frameworks’) may be needed to limit policy variation between the parts of the UK. This is seen as necessary to protect the coherence of the UK internal market, once the umbrella of the EU Single Market is removed.

The implication is that Westminster might impose new constraints on devolution to limit the scope for legal divergence in areas such as agriculture, animal welfare, food standards, regulation of services and state aid for industry.

The devolved governments agree that some UK-wide frameworks will be needed, but there is a fear in Edinburgh and Cardiff that Westminster might use the process as a Trojan Horse for undermining devolution. Scottish Brexit minister Michael Russell recently told the Institute for Government that “the Scottish Government is refusing to have any truck with the UK Government’s invented concept of the supposed needs of some non-existent ‘UK Single Market’”.

Underlying this dispute is a deeper problem. Brexit has exposed a gulf in how the rules of the constitution are understood. This was demonstrated by the passage of the European Union (Withdrawal) Act 2018 despite the opposition of a large majority in the Scottish Parliament. Opposition came not only from the SNP, but also Labour, the Liberal Democrats and the Greens.

From a legal perspective the UK Parliament was within its rights – devolution did not remove the power of Westminster to make law for all parts of the UK. But in Edinburgh and Cardiff this was regarded as a direct breach of an important convention. Since 1999, the UK Parliament has agreed that it should not normally pass laws in devolved areas without devolved agreement. Consent has been given under this convention for around 200 Acts of Parliament since 1999. Disputes have been rare.

The Withdrawal Act was different. This was the first time the UK Parliament passed a law without consent despite having agreed that the convention applied, due to the impact of the law on devolution. The contested provision of the Act allows UK ministers to freeze devolved powers in areas where UK-wide common frameworks are to be created.

UK ministers decided this power was vital, so proceeded regardless. The Government had already compromised on the bill, which persuaded the Welsh Assembly ultimately to give its blessing, but the Scottish Parliament was unwilling to accept the deal. This episode has been followed by disagreements over other Brexit bills that affect devolution – on trade, agriculture, fisheries and immigration.

In the end, the UK Parliament could pass all these bills without Scottish agreement, but this would come at a price. It would reinforce the narrative that Westminster has little respect for devolution, and make it far more difficult for the UK and devolved governments to work together after Brexit –which they will need to do if the planned common frameworks are to function effectively.

A more sensible approach is for the governments to work in partnership to develop a new understanding of how devolution should work, with UK-wide frameworks agreed by consensus, underpinned by transparent decision-making and dispute resolution processes, and perhaps with new protections to prevent Westminster from amending the terms of devolution at will.

Other big challenges we identify in our report include reforming the system for funding devolution,  addressing the question of how England should be governed, restoring devolution in Belfast, and expanding the capacity of the Welsh Assembly, which is too small for its expanded powers. More broadly, there may need to be a culture shift: to re-imagine the UK as a voluntary union of four nations – each with the right of self-determination – rather than a unitary state in which Westminster ultimately has the final say.

Devolution has transformed the UK, in many ways for the better. But there has been too little consideration of how the different parts of the constitution work alongside one another. The big task now is to work out how the pieces of the jigsaw can fit back together.

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Akash Paun is a senior fellow at the Institute for Government