Working to make government more effective

Comment

What happens if the UK and devolved governments can’t agree on Brexit

How the devolved governments will be involved in Brexit is a matter of serious concern in Edinburgh, Cardiff and Belfast

How the devolved governments will be involved in Brexit is a matter of serious concern in Edinburgh, Cardiff and Belfast – even if it may not feel like a top priority in Westminster. Akash Paun looks at how the process should work and what happens if it goes wrong.

At Holyrood yesterday, I gave evidence to the Scottish Parliament, discussing how the devolved governments should be involved in Brexit. Theresa May travelled to Edinburgh in her very first days as Prime Minister to declare that her administration would seek a “UK approach and objectives” to Brexit. In Edinburgh, this statement was interpreted as meaning that consensus would be reached between the UK and Scottish governments on a negotiating strategy before triggering Article 50.

However, it remains less than clear whether this interpretation will prove an accurate guide to how the British Government plans to proceed. And if the UK and devolved governments enter into the process with divergent expectations, the risk is that we will eventually reach a crunch point.

A UK-wide mandate

It is unlikely the UK’s four governments will come together as equal partners, with parity of influence over the British negotiating strategy. According to the devolution legislation, relations with the European Union are a matter for Westminster, so the British Government can pursue the policy of Brexit without reaching consensus with the devolved governments.

But this does not mean the devolved governments can be treated as just another stakeholder to be consulted, like the CBI (Confederation of British Industry) or the National Farmers Union. Withdrawal from the EU will affect many areas of devolved policy and change the rights of citizens of the devolved nations, as well as ending devolved access to EU funding for agricultural support, regional development and research.

The four governments must therefore work together, even if the UK Government retains its right ultimately to make the final decision on negotiating priorities. A joint secretariat of civil servants from across the UK should be created to support the process. And the workings of any intergovernmental forums established to work out the UK approach to Brexit must be transparent, so that everyone can exercise appropriate scrutiny.

All this will require genuine commitment and good faith from leaders across the UK to make this collaborative effort work.

Looming constitutional crises?

Outright rejection of the terms of Brexit by one of the devolved bodies would take the country into dangerous territory. For Westminster to ignore the Scottish Parliament (or another devolved assembly) and press ahead regardless would be to flout established convention, triggering a potential constitutional crisis as shared understanding of the ‘rules of the game’ break down.

But the UK Government is unlikely to concede a veto power to Scotland, Wales or Northern Ireland over the terms of Brexit, since that could weaken their hand in both levels of negotiations – with the EU and with the devolved nations. Also, since Article 50 sets a two-year limit on negotiations, if the UK ultimately fails to reach internal consensus about the terms of Brexit before time runs out,  it would risk exiting without any negotiated terms.

A history of not working well together

So agreeing on how the devolved governments will be involved in the process is crucial.  But existing ways of working together have not always lived up to expectations.

The Joint Ministerial Committee on Europe is regarded as a tarnished brand, a forum where UK ministers announce decisions already taken about the UK negotiating position in Brussels, with little scope for devolved influence. It only meets when the UK Government decides, and notably failed to convene prior to the February European Council meeting (when David Cameron’s attempted ‘renegotiation’ of our EU membership was finalised).

Ultimately, the terms of any Brexit deal are likely to be put to the three devolved legislatures under the ‘legislative consent convention’, which requires agreement where Westminster legislation intrudes into devolved domains or alters the contours of the devolution settlements.

Further announcements are expected in the coming weeks about what Theresa May’s commitment will mean in practice. Whatever approach is taken, the four governments will have to be ready to hit the ground running to make a success of this complex joint endeavour that the June referendum result requires them to undertake.

Related content

21 MAR 2024 Analysis paper

Hung parliaments

Rules governing unclear general election results are loosely defined in the UK.

08 FEB 2024 Insight paper

The Union and the state

Whether the UK survives in its current form or what it will look like if it doesn’t stay together, will hinge on which vision prevails.