Brexit is forcing the UK to confront its territorial governance
Since devolution the UK has resembled a state with a quasi-federal constitution. But Brexit is forcing the country to confront its unresolved tensions, writes Tom Mullen. The Conservative government's restrictions on devolved competence in Scotland, and the crisis over the Northern Irish border, show the folly of behaving as if the UK is still a unitary state.
As the clock ticks down towards 29 March, most commentators are understandably focusing on the general question of what the UK’s future relationship with the EU will be, including the possibility of a no-deal Brexit. But, whatever form the future relationship takes, the Brexit process has already had a major impact on territorial governance in the UK and seems likely to continue to do so.
Territorial governance in the UK has changed substantially since the 1960s in response to the rise in nationalist sentiment in Scotland, Wales and Northern Ireland. The old notion that the UK is a unitary state is no longer credible and it makes more sense to describe the UK as having a quasi-federal constitution. But these major developments in the UK’s arrangements for territorial governance have not resulted in a stable constitutional settlement. There are several reasons for this, including:
that political parties and voters in different parts of the UK have incompatible goals
that there is no agreed constitutional narrative for the UK
that there has been a lack of change at the centre of government
that relations between the devolved and UK governments have been unsatisfactory
that current arrangements for territorial governance are asymmetrical, and
the way devolution is financed.
At some point, these unresolved tensions would probably have been forced back on to the political agenda, but Brexit has forced the UK to confront all of them at once - and in fraught circumstances, under serious time pressure. Managing these tensions in the context of Brexit would have been a difficult task for any government, but the way in which the current Conservative government has gone about it has worsened those tensions. The government cannot do much in the short term to resolve the first two of the tensions mentioned above - i.e. the fact that different political parties and different voters hold incompatible goals, and the absence of an agreed constitutional narrative - but it has some control over the other factors affecting the stability of the constitutional settlement, e.g. central government and intergovernmental relations.
It would clearly not have been realistic to expect comprehensive reform in these areas while Brexit negotiations were underway, but in fact the UK government’s approach to Brexit has magnified the tensions in territorial governance. The Prime Minister’s priorities have been (a) to deliver some kind of Brexit so as to be seen implement the leave vote in the referendum, and (b) to avoid a damaging split in the Conservative party. In pursuing the second aim, more weight has been given to accommodating the views of the Eurosceptic tendency within the Conservative party than the views of its pro-European wing. All other considerations have been secondary. I will give two examples of how this has adversely affected territorial governance.
Restricting devolved competence
Many aspects of policy that are governed by to a greater or lesser degree by EU law were devolved matters in terms of the devolution legislation - for example, agriculture, fisheries and the environment were devolved subjects under the Scotland Act 1998. But freedom to make policy in these areas was severely restricted by the fact that it was beyond competence to legislate incompatibly with EU law. The repeal of the European Communities Act 1972 and removal of the requirement to legislate compatibly with EU law would, if no other changes were made, have given substantial policy-making autonomy in these areas to the devolved institutions. However, clause 11 of the original version of the European Union (Withdrawal) Bill set out a new competence limitation which would have prevented the devolved assemblies from changing any laws required for compliance with EU law (‘retained EU law’); only the UK Parliament could do this. In the event, a more narrowly drawn power - section 12 of the European Union (Withdrawal) Act – was enacted, which allows UK ministers to restrict competence on a piecemeal basis by making regulations.
The justification offered by the UK government was to avoid new barriers to trade and other interchange within the UK being created by policy divergence after Brexit. This was not an unreasonable aim; the problem lay with the method of achieving it. Policy co-ordination might have been achieved by voluntary co-operation of the four governments, but the UK government defaulted to traditional centralist unitary state assumptions out of tune with the way that territorial governance in the UK has evolved. The outrage that greeted this proposal in Scotland and Wales was not purely synthetic, nor confined to nationalist politicians.
The restriction was also, arguably, a breach of the Sewel convention which states that the UK government will not normally legislate in the devolved areas or change the competence of the devolved assemblies without their consent. Although the Welsh government eventually agreed to support the change, the Scottish Parliament refused to give its consent by a wide margin – 93 votes to 30. The Bill was nonetheless enacted by the UK Parliament.
The UK government had to argue that this was not a breach of the convention because the situation fell within the ‘normally’ exception, but its argument to this effect has been rather thin. It has referred to the need for common policy frameworks but has not explained why these could not be achieved by negotiation rather than being imposed by it. It has also referred to the current situation being exceptional, the need to respect the referendum outcome and the fact that it has tried to reach agreement with the Scottish government on the question of legislative competence, but had failed to do so.
But this seems to reduce the Sewel convention to a merely procedural obligation under which the UK government tries to reach agreement with the devolved governments but if it cannot get agreement simply proceeds without their consent. The better view of the convention is that there are substantive limits to the exception which require the UK government to explain why invoking the exception to the convention is consistent with the purposes of the convention, or that some other important constitutional principle should take priority over the Sewel convention. It has not attempted to make such a case.
No doubt the main reason for the UK government’s reluctance to leave it to negotiations to produce the common frameworks is the conspicuous lack of trust between it and the Scottish government that has been evident for several years - and even more so between it and Sinn Fein in relation to Northern Ireland. Whilst this explains the approach, it does not justify it. Respect for devolution requires that the negotiation route should at least have been attempted before being dismissed.
In the context of Northern Ireland, respect for the devolution settlement means not only respecting the autonomy of Northern Ireland. It also means supporting the other aspects of the peace process enshrined in the Good Friday/Belfast Agreement. That in turn requires equal respect for the nationalist and unionist communities and their political representatives. The government ignored that requirement when it entered into a ‘confidence and supply’ agreement with the Democratic Unionist Party (DUP) after the May 2017 General Election in order to get a working majority in the UK Parliament.
This could only be seen as taking sides between unionist and nationalist communities in Northern Ireland, and was guaranteed to further undermine trust between the Northern Ireland parties and the UK government. It also showed either a lack of understanding of, or respect for the requirements of, the Good Friday/Belfast Agreement in its initial negotiating stance set out in the PM’s Lancaster House speech. This was premised on the UK being outside both the customs union and the single market, which was hard to square with the government’s declared intentions of avoiding a hard border on the island of Ireland.
One possible means of squaring this particular circle – a customs and regulatory border between the UK and Northern Ireland - was unacceptable to the DUP. The more recent attempt, the so-called ‘backstop’ in the draft Withdrawal Agreement negotiated with the EU, has also been rejected by the DUP who voted against the agreement in January because of the backstop. The hard-line Brexiteers in the Conservative party are also opposed to it.
At this stage no-one knows what the long-term consequences of Brexit for territorial governance will be - and many factors, including the economy (whether or not linked to Brexit) will play a role - but a worsening of the tensions seems inevitable unless not just the current Conservative government, but UK political elites generally, change their approach to territorial governance. They could do this by moving towards acceptance of the quasi-federal interpretation of the UK constitution and considering carefully what institutions and processes that implies - rather than defaulting to unitary state assumptions.
For a fuller discussion of the issues in this post, see Tom Mullen, ‘Brexit and the Territorial Governance of the United Kingdom’ (2019) Contemporary Social Science (doi:10.1080/21582041.2018.1563802)
Tom Mullen is Professor of Law at the University of Glasgow.
This post originally appeared on the LSE Brexit blog.