Saving the Union from Brexit will require bold thinking about the constitution

Brexit has left devolution vulnerable to the whim of Westminster, according to Welsh First Minister Carwyn Jones, speaking at the Institute for Government this week. The First Minister, who steps down in December after nine years at the top of Welsh politics, launched a sustained broadside against what he called the “complete shambles” of the UK’s governance arrangements, and called for urgent reform to save the Union.

The First Minister’s vision of a new Union based on partnership between the four UK nations is an attractive one. And his proposals – for a revived Sewel Convention and a new approach to intergovernmental working – have much merit. They offer a model for a revived Westminster-Cardiff relationship. But the UK and Scottish Governments are divided by a far deeper gulf in their understanding of the constitution. To bridge that gap, more radical thinking will be required.

The Welsh proposals for a revived Sewel Convention should be taken seriously

The First Minister took aim at a number of central pillars of the UK’s constitutional system, including the ancient doctrine of parliamentary sovereignty. This principle holds that the UK Parliament “cannot legislate to bind future parliaments”, which means the powers of the devolved bodies can be overridden by legislation passed at Westminster.

Under the Sewel convention, the UK Parliament has agreed to “not normally” interfere in devolved areas without devolved consent. But the recent passage of the EU Withdrawal Act 2018, which amends the powers of the devolved bodies, reveals that the UK Parliament is willing to disregard this convention when it deems the situation abnormal.

The Welsh Assembly ultimately acquiesced, but the Scottish Parliament withheld consent, and Westminster proceeded regardless. This has caused understandable concern in Cardiff about how Westminster might approach future disagreements with the Welsh devolved bodies, for instance when legislation is introduced to replace EU law on, say, state aid or the environment. As the First Minister put it, the devolved institutions now seem “significantly more vulnerable than before”.

He therefore wants to “breathe new life” into the Sewel convention, by defining the vague notion of “not normally”, and creating new parliamentary stages at which ministers might be required to think again about pressing ahead without consent.

However, these proposals are unlikely to go far enough for Scotland. After the Withdrawal Act was passed, the Scottish Government effectively declared Sewel dead, and announced that it will not even consider giving consent to upcoming legislation on trade, agriculture and fisheries.

Strengthening the Union will require creative constitutional thinking, not more incrementalism

So Westminster may have to move further. In particular, the Sewel Convention should be given proper legal teeth. One option, which would move the UK closer to a federal constitution, would be to create an outright veto for the devolved bodies over legislation that impinges on their powers. This was rejected during the passage of the Scotland Act 2016 and is likely still to be a step too far for UK ministers.

A more palatable alternative could be to give the devolved parliaments the power to delay but not ultimately block legislation that affects devolved matters. This would be analogous to the ‘suspensive veto’ of the House of Lords, which the House of Commons can overcome after a year using the Parliament Act. Such a reform could strengthen incentives on both sides to compromise.

A third option would be to require a super-majority in Westminster (perhaps two-thirds of the House of Commons plus a simple majority of the Lords), before Parliament could overrule the objections of Edinburgh, Cardiff or Belfast.

As Carwyn Jones noted, Westminster has always preferred to “make do and mend” when constitutional problems arise, but the pressures created by Brexit call for bold thinking. Otherwise we face continued conflict, quite probably leading to a second independence referendum in Scotland (if not also a poll on Irish reunification). 

It cannot be right that Westminster can act as judge and jury in its own disputes on devolution

There are other pressing issues to address too. The First Minister identified a need for the four parts of the UK to collaborate – in a spirit of “interdependence and shared governance” – to create new arrangements in place of EU law. If Westminster simply imposes its will then the outcome will be yet more conflict and instability.

He called for a new UK Council of Ministers with proper decision-making and dispute-resolution powers. At present, when there is disagreement, the UK Government can simply act as judge and jury in its own case. It can even simply refuse to acknowledge that there is a dispute, as when Scotland and Wales objected to the extra funding offered to Northern Ireland. That cannot be right.

There is a long-delayed review of intergovernmental arrangements under way, and these issues should be considered as part of that. The Institute for Government is a long-time critic of how UK and devolved governments work together, and recently advocated a new approach to joint working in areas such as agriculture, trade and the environment. A reformed system should, as the First Minister argued, rest on the idea of devolution as “a joint project” between the nations of the UK, rather than a mere creation of Westminster.