18 October 2017

At the first official meeting of the Joint Ministerial Committee on Brexit in eight months, some progress was finally made. Akash Paun hopes this is more than another false dawn.

Since June 2016, the Institute for Government has urged the UK and devolved governments to seek consensus on the terms of Brexit and on resultant changes to the UK’s internal constitutional arrangements.

We have subsequently grown increasingly disappointed by and critical of the poor state of UK-devolved nation relations. Things have been particularly strained since the publication in July of the EU Withdrawal Bill, which the Scottish and Welsh Governments describe as a ‘power grab’ by Westminster and that they will seek to block it through the Sewel Convention.

Finally, some evidence of progress

Once we leave the EU, each nation of the UK will be free under the existing devolution legislation to follow very different policies in areas including their support for agriculture, state aid for industry, public procurement, environmental standards, management of radioactive waste, rail franchising and more. These are areas that are devolved in theory but constrained in practice by EU law.

In total, there are 111 policy areas where EU law and devolved competences intersect in Scotland, 64 in Wales and an estimated 140 in Northern Ireland.

So the focus of this week’s meeting between First Secretary of State Damian Green, other UK ministers and representatives of the devolved governments was on the creation of new ‘common frameworks’ to replace the EU laws that will soon cease to apply. These frameworks will be laws or agreements between governments about how to coordinate or align policy after Brexit.

At yesterday’s meeting, the four governments reached a potentially significant agreement on the general principles for and definitions of these new frameworks.

devolution wales scotland brexit frameworks

Six reasons for new frameworks

To limit the potential for policy divergence in these areas, the UK government has consistently argued that new frameworks will be needed to fill the gap left by EU law. At yesterday’s meeting, ministers agreed on six reasons for new frameworks:

  1. to protect the functioning of the UK internal market
  2. to ensure the UK can meet international obligations
  3. to enable the UK to strike new trade deals
  4. to manage common resources like fisheries
  5. to ensure effective cross-border cooperation on justice
  6. to safeguard national security

There is also a commitment that the devolved institutions will retain at least the same level of policy autonomy that they currently enjoy in any particular area, and that overall there will be ‘a significant increase in decision-making powers for the devolved administrations’. A still vaguer clause commits them to close intergovernmental working on non-devolved matters that will impact upon devolved issues, such as trade policy.

Both sides made some important concessions 

The devolved governments agree that where national economic, diplomatic or security interests are at stake, they will cooperate to create new UK-wide frameworks. And the UK government commits that the overall impact of Brexit will be an enhancement of devolved power.

Clearly, however, the devil will lie in the detail.

Agreement on principles is a start, but the hard work must now commence to establish how the different principles should be interpreted in each of the 100+ policy areas in question. The big sticking point may be less where frameworks of some kind are needed, but to what extent these new arrangements should be created via legislation at Westminster as opposed to less binding intergovernmental agreements.

The UK government is likely to favour the former and the Scots and Welsh the latter.

Having finally resurrected the dormant intergovernmental machinery, it is to be hoped that yesterday marks a genuine reset of the UK-devolved relationship rather than another false dawn. 

Further information

Find out more about Brexit, devolution and common frameworks in our explainer. 

Comments

As already shown the Sewell Convention means nothing to Westminster. Scotland has been lied to and ignored far too often to take Westminster's word for anything, especially anything that Mundell says.

McCrone report, oil revenues squandered, fiddled export figures that show exports leaving English ports are credited to England, grid connection charges and now a huge bung to the DUP just for Tories to maintain a tenuous fingertip hold onto power.

These are not the dealings that respect a devolved Nation.

Any agreement with Westminster must be legally binding and in writing. All unreserved matters have to be returned to the devolved Assemblies without exception.

The Sewell Convention does not apply, Westminster need the devolved Assemblies to pass Legalistive Motions of Consent. In particular Scotland has Her own Laws and has done since before an after the Act of Union. For England to attempt to override Scots Law would be breaking the Act of Union and the UK, that is the combined Kingdoms of Scotland and the Kingdom of Greater England would instantly cease to exist.

No spin, just hard facts that Westminster would be well advised to take note of.

As the lead senior official responsible for preparing Scottish input into JMCE discussions it is encouraging that the UK is willing to explore mechanisms for ensuring devolved animist rations input to the frameworks. But experience shows that when push comes to shove the Sewell convention can be put to one side. In addition the nature of JMC discussions out with the EU framework suggests that the UK will take a much stricter position towards the devolveds than it does in the more transparent EU context. The UKG will do all it can to limit the freedom of manouevre if the devolveds in the way they act internationally, Brexit promises to be a more constraining corset than the EU.

‪This is a good article but perhaps could have explored how politically sensitive this issue is. The so-called UK Single Market and avoiding policy divergence are matters foisted on devolved govts as a consequence of the UK Govt's trade focus post-Brexit. Neither Wales nor Scotland voted for Brexit yet have to swallow this whole. The 'power grab' is short-hand for being short-changed in the powers granted pre-Brexit regarding overall policy direction of the devolved admins. This is hugely under-reported and - its consequences - significantly under-estimated.

Inter-governmental co-operation will be a poor thing if it is not accompanied by inter-parliamentary co-operation. With perhaps the honourable exception of the Welsh Assembly, the four legislatures and the five chambers have a woeful record on actually getting anything done to improve matters. The Calman, McKay and Silk commission reports all had small, practical and achievable proposals on this dimension, but there seems to be no-one in these bodies with the authority and dynamism to allocate resources to make things happen, or even to get a proper dialogue going. The IfG could do us a great service by coming up with a plan and then helping in its implementation - for example simply by inviting the five presiding officers to a meeting to discuss some concrete proposals and a draft action plan.

Add new comment

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.
By submitting this form, you accept the Mollom privacy policy.