There was one fully justified Red Line buried amidst Theresa May’s long list of them: that no agreement is permissible that would draw a dividing line within the United Kingdom (see The meaning of Theresa May’s one legitimate Red Line). Drawing such a dividing line, she stated – and stated with a passion unusual to her – would be something that no UK Prime Minister could do, nor accept. One can see in this a thinly veiled meaning that to do such a thing would cross the line of disloyalty to the Realm, something no PM could legitimately do, as the safety of the Realm is always the first charge on HMG.
She was not consistent about this, to be sure. She meant by
this only a prohibition against actively drawing a line of separation, such as
a hard border line or customs line. She neglected to include a prohibition
against serious damage to the sentiment of Union, the foundation of the
continuity of the Realm. She was prohibiting only the most extremely damaging
deal, one that would include a direct action of dividing the Union that is the
United Kingdom; she ignored the fact that any Brexit would imperial the Union
by undermining its sentiment in both Scotland and Northern Ireland.
Johnson’s deal flagrantly breaches even May’s narrow Red
Line. He thereby breaches also Theresa May’s line between loyalty and
disloyalty to the United Kingdom.
The contradiction of Squaring the Circle; the consistency of a Common EU Context
The Johnson deal has Northern Ireland staying in the Single
Market while Great Britain leaves it. This line of division in the Deal is not
erased by its formal language about Northern Ireland staying in the UK Customs
Union de jure, since at the same time it keeps it within the EU Customs Union
de facto. That language simply renders both halves of the equation
self-contradictory. That is to say, it renders the denial of both lines of
division, on the North-South Irish border and in the Irish Sea, a false denial.
The border lines are real in both cases, the denial of the border lines unreal
Mr Barnier indicated as much, when announcing the deal: he
spoke of its contents on this issue as “squaring the circle”. These are words
that mean that it is inherently contradictory and not to be taken at face
More: it means that the patching up that it attempts on both
ends is superficial, and the promises of being alright for both sides is false.
It means that the reassurances for both the intra-Ireland border and the
intra-UK/Irish Sea border are prone to fall apart at any moment, and will be
unable to withstand the shocks they will inevitably run into in the real world.
The only way to get around needing to “square the circle” is
to cease pitting the square against the circle as the only games in town,
facing each other in solitude and requiring mutual adjustment. There is only
one way in turn to do this: to abandon the assumption that the square and the
circle must stand alone in separate customs orders, or else in a unique customs
order all by themselves, and instead keep both embedded within the same larger
customs order. In other words, it requires the UK to remain alongside both
Irelands inside the EU Customs Union.
Nothing less is required for the integrity of the UK.
Nothing less is required for Theresa May’s one legitimate Red Line.
This is why May’s deal did keep both entities inside the EU
Customs Union for an indefinite future. And why that future was to extend until
such time as it could be proven, if ever, that arrangements were in place
enabling the UK to leave the Customs Union without any hard border in Ireland.
To be sure, while this is necessary for the Union, it was
unlikely to be sufficient in the long run. What has proved sufficient is
membership in the EU for Britain and Ireland together.
That is why any form of Brexit undermines the sentiment for
the Union in Northern Ireland. The importance of the EU for the peace in
Northern Ireland is profound. There is a mediating value of being part of a
greater Union, one within which the English are not a hegemon as they are
within the British Isles alone. This is important in softening the tension
about Union for Scotland and Northern Ireland alike. For the latter, it is also
important for allowing the duality of identity, at once Irish and British, to
be accepted calmly. That duality was inherently problematic as long as the UK
remained alone with Ireland; the problem was manifested in the troubles. Once
both islands were in the EU, the duality of Norther Irish identity became far
The open border within Ireland is important not only in
itself, but as an indication that the duality of identity is no longer being
contested, constrained, or fought over. Catholics can identify with nationalist
Ireland and move about in it freely, yet remain UK citizens, and live alongside
Unionists who identify as Britons. Remove the mediating role of the EU, and the
Irish border turns into a sharp symbol of the identity issue. Harden the
border, even mildly, and the sharpness of the issue become potentially fatal
Conversely, harden the border in the Irish Sea, and the
identity of the Unionist community becomes troubled, their acceptance of the
existing order problematic. That is why Theresa May’s Red Line against any such
hardening was necessary, if not sufficient. Its less than complete sufficiency
does not detract from its necessity, rather it adds to it. The dangers of the
breach in the Red Line are increased, not lessened, by the fact that it
compounds a deeper identity issue.
Who will stand up for the Realm?
Theresa May has every right to denounce Johnson’s deal as an act of disloyalty to the United Kingdom. Indeed, MPs thought it remiss of her to fail to speak out against Johnson’s Deal, shouting on Saturday from the backbenches at her to rebel. They offered her an opportunity to save her soul. In refusing it, she confirmed our earlier diagnosis: that she suffered an unwillingness to take responsibility for making painful choices, and her Red Lines were dictated by her internal mental red line against taking the blame for the damage to the UK, rather than by a will to draw an adequate line against the damage itself (see Theresa May on the Couch).
Nigel Dodds, spokesperson of the DUP Parliamentary group,
recalled Theresa May’s words about the inviolability of the Red Line on the
integrity of the UK, and recalled that Mr Johnson had repeated her strong
words, which he is now traducing. Mr Dodds stood up for the former PM, at a
time when she would not stand up for herself. It remains for Theresa May to
find the courage to stand up at this time for herself and for the survival of
the United Kingdom.
Probably she will not. But perhaps Parliament itself will.
It clearly wants to. It is a question of whether it can sustain, in face of a
seemingly rogue Government in No. 10 and its ongoing campaign of intimidation,
the will to stand up for itself and for its country by uniquely autonomous,
innovative, and strict legislative means.
The Benn act was an important beginning in this regard.
Beyond it beckons a need for further follow-up steps along its lines. There
might be a need for measures that reduce the Government in several future
matters of Brexit to a legal courier between Parliament and the EU, so the
Government cannot act as an independent actor that could destroy the UK. This
might encompass tying down this or any Brexit deal to a confirmatory
referendum; tying it down also to fully complete implementing legislation,
securing an extension from the EU long enough for the referendum; and establishing
regular channels of direct communication with the EU.
The cloud over Northern Ireland, too, is not without its
silver lining. The DUP is being forced into a shock therapy. It is seeing for
the first time a profound reality: that Brexit is going to be its damnation,
not the salvation it dreamed it could be.
Brexit will not bring back a long-gone UK where the Unionist
community had the numbers and clout to dominate, and where England had the will
to rule. It will bring only a reduced England, spiraling inward in its
nationalism, while in Northern Ireland the Unionists will be left face to face
with an emerging Catholic majority.
Britain plus Ireland in the EU, with fully open borders in
both the Irish sea and across the isle of Eire, is the maximum salvation
feasible for the Unionist community. Any Brexit is its damnation; the question
is only the degree of damnation. May’s Brexit was recognized and denounced by
the DUP as a damnation; so is Johnson’s. While a full reversal of views is
unlikely all at once, it is possible that the shock is great enough to bring
the DUP to genuine wisdom in its policy; enough perhaps to support a second
referendum, that being the only face-saving way for it to save its community
Let us give credit where credit is due. If Johnson’s plan is defeated in Parliament and if a lengthy extension is obtained, he will have wasted only a few months’ time, dispelling in that time most of the illusions he and the hard Brexiters had fostered, and bequeathing an extension with a potentiality for bearing fruit. That compares favorably with May’s record of wasting three years and bequeathing a worse situation than she started with. If all the dangers and illusions of Brexit could be dispelled so quickly, the Brexit saga might yet come to a happy ending.
episode has seen the political system of the United Kingdom subject itself to
immense pressures. Politics always involves tension. However, the cross-cutting
divisions exposed and widened by the prospect of leaving the EU are of a more
fundamental variety. Rather than arising from the regular functioning of a
democratic polity in which different organised interests compete with
one-another, they involve disputes within the groups taking part in those
struggles. Both the main parties at Westminster, for instance, lack internal
consensus over the appropriate way forward. Underpinning this dysfunction are deep-lying
disagreements about the constitutional system itself. These disputes involve
questions of immense importance. What should be the legal and institutional
relationship between the UK and the European region of which it is a part? How
should major decisions be made, and what are the respective roles for the UK
Parliament, the UK executive, and the people? Who, indeed, are the people and
how should their will be discerned? Recently, the public focus for such
conflict has been at UK level, in Westminster. But there is also a territorial
dimension, involving tensions within different parts of the UK, and their
relations with each-other and the centre. Accordingly, this paper discusses the
Brexit experience to date from the perspective of each of the four components
of the UK – Wales, Scotland, Northern Ireland and England, and considers the
One of the
more surprising outcomes of the referendum of 23 June 2016 was that Wales
produced a ‘leave’ vote, by 52.5 per cent to 47.5. Certain commentators have
subsequently expressed bemusement that a territory that is a notable
beneficiary of EU subsidies, and is in a relatively disadvantaged economic
position, should produce such an outcome. Indeed, it was some of the least
privileged areas within Wales that were most supportive of leaving. For
instance, Cardiff voted 60 per cent remain, while Ebbw Vale produced a 62 per
cent leave result. Those who approve of the overall outcome in Wales might
congratulate those Welsh voters who were willing to prioritise the objective of
freeing themselves from Brussels dominance over their personal short-term
self-interest. Moreover, advocates of this position might go on, there are
longer term gains to be had for Wales, as for other parts of the UK, once the
post-Brexit reorientation of trading relationships has been achieved. However,
it may also be that many voters in Wales, encouraged by ‘leave’ campaigners,
chose to disbelieve the claimed benefits of EU membership, therefore concluding
that withdrawal would have no negative impact, and would be followed by an
improvement in conditions. If and when they are furnished with definitive proof
that they were wrong, it will be too late for them to reverse their decision: a
central problem of Brexit. There is evidence, too, that since June 2016 opinion
in Wales has shifted away from support for leaving, but on present political trajectories
it will not have the opportunity to express itself in such a way as to affect
The Wales result
should serve as a reminder that matters other than material self-interest seem
to have played a part in the referendum. The basis on which any given
individual makes such a decision is a matter for them. However, if voters are
willing to choose radical options on a basis of a desire for sovereignty in one
instance, they may do so in another. The argument that leaving the EU would be
economically harmful and politically disruptive did not prevail in 2016. It
could, therefore, also fail to quell secessionism from within Great Britain. This
observation seems particularly salient in the case of Scotland at present. But
it cannot wholly be excluded that, depending on how events transpire, it could
become relevant at some point in the future in Wales also. Moreover,
post-Brexit independence advocates will be able to present their movements as
offering a path not to isolation, but to incorporation into a wider entity, the
that Wales (or the UK) voted to leave is to accept a reductive interpretation
of democracy: that a bare majority of those taking part on a given day, in
support of an ill-defined proposition, is decisive for the foreseeable future,
and that the opposite view, expressed by a slightly smaller number at the
referendum, is no longer entitled to any representation, even if there are
shifts in public opinion. Yet the Welsh government chose from the outset to
accept this particular line, despite having supported the opposite outcome. In
doing so, however, it presented the outcome of the Welsh vote, rather than that
of the whole UK, as binding it. It might be inferred that, had Wales produced a
‘remain’ result, then – regardless of the outcome for UK in its entirety – it
was not required to depart; a contradiction of the logic advanced by the UK
government, with its assertion that the UK result was indivisible.
the Welsh government argued (without success) in favour of a variety of Brexit
that it felt protected the particular interests of Wales, preserving
participation in the Single Market and Customs Union. The Labour
administration, in conjunction with the nationalist opposition party Plaid Cymru,
also used the prospect of Brexit to re-promote its pre-existing agenda for the
UK constitution: that it should take on quasi-federal characteristics. Within
its model, the sub-components of the UK would be provided with a more formal
role in determining decisions taken on behalf of the whole, in contrast to the
consultative arrangements provided for under the devolution Memorandum of Understanding (MOU) and
the Joint Ministerial Committee. This agenda can be seen in part as a means of
promoting the importance of Wales within the UK. But it should not be
interpreted and dismissed purely on this basis. Of the different UK polities
involved in the response to Brexit, only Wales has advocated a set of systemic
changes that accept the logic of fundamental changes to the UK constitution in
the post-devolution era; but are intended to apply to the whole Union, rather
than dealing mainly with the relationship between it and the UK centre; and
that are not part of a strategy of secession from the UK. The Welsh government
is, after all, under the control of a party, Labour, that operates across the
whole of Great Britain. Wales is the nation of the UK in which Labour
consistently enjoyed the most success. However, this connection to a larger
entity has not substantially assisted the Labour Welsh government in securing
its goals in relation to Brexit.
Scotland, the 2016 referendum took place less than two years after a vote on
independence. In September 2014, by a margin of approximately 10 per cent, a
majority of participants chose to remain within the UK. Though secession was
averted, the episode was not interpreted at the time as an indicator of or
contributor to stability on the part of the Union. The result was closer than
many had anticipated at the time it was first called; and one opinion poll
shortly before the vote had shown a narrow majority for independence.
Furthermore, in the UK parliamentary election that followed, in May 2015, the
pro-independence Scottish National Party (SNP) won nearly every Scottish House
of Commons constituency. Though it lost seats at the June 2017 General
Election, the SNP remains the largest Scottish party at Westminster and has
held office continuously since 2007 at devolved level.
referendum provides an important context for an understanding of that of 2016
and its aftermath. It suggested that the status quo position does not
necessarily enjoy the inbuilt advantages sometimes attributed to it in such
votes. Moreover, a useful contrast can be drawn regarding the way in which the
referendums were run. In 2014, EU citizens and those aged 16 and 17 were
allowed to take part. In 2016, despite calls for this more expansive approach
to be taken, they were excluded. Had these groups been permitted to
participate, it is reasonable to assume that the outcome would at least have
been closer, or possibly different. The only extension in 2016 to the usual
franchise employed for elections to the UK Parliament was the inclusion of
voters in Gibraltar and members of the House of Lords. While Gibraltarians
proved resoundingly to favour continued EU membership, and Peers probably did
also, they were not numerically as large as those left out by the decision not
to follow the 2014 precedent. This discrepancy in the franchises used between
the 2014 and 2016 referendums could be noted by any critic wishing to query the
strength of the obligation created by the ‘leave’ result. But it was most
obviously apparent in Scotland, where the earlier vote had actually been held.
argument advanced by the ‘Better Together’ campaign in favour of the
continuation of the Union in 2014 was that to leave the UK would be detrimental
since Scotland would as a consequence cease to be a member of the EU, and that
a swift reincorporation into this supranational entity was unlikely. Aside from
the debates about the veracity of this claim and the legal and diplomatic
issues it engaged, the political message it presented was important. Membership
of the EU was desirable, and by extension so was Scottish participation in the
UK as the only means of securing the former good. The 2016 referendum reversed
this premise. In Scotland, remain won by 62 per cent to 38 per cent, with every
single counting area producing a remain majority. Yet the UK government was
determined that the simple majority of those voting across the whole UK should
be treated as decisive, regardless of territorial divergences. This
circumstance created an obvious opening for the SNP – that supported EU
membership for Scotland outside the
UK – to revive the Scottish independence issue, and demand a further referendum
sooner than might previously have seemed plausible. One of the main arguments
in favour of the Union had now been removed. The will of Scotland, it could be
held, was being overridden by that of the UK – and in particular, England. The
only possible means of securing continued, or restored, EU membership in this
context was secession.
though the rhetorical opportunities were appealing, the political realities
were a challenge. The extent to which members of the public relished the
proposition of yet another turbulent referendum campaign was unclear.
Furthermore, in the months following 23 June 2016, definite evidence of a rise
in the desire for independence was lacking. It seemed to remain at a similar
level to that demonstrated by the 2014 vote – that is, roughly in the mid-40s.
Opinion research on the way in which people who took part in both referendums
had voted suggested that the SNP faced a complex task. The core upon whom the
SNP could presumably rely were the 21 per cent who had backed independence and
EU membership. But more support would be needed. The least fertile ground would
be the 16 per cent who had voted to remain within the UK, but leave the EU;
while the most hopeful group, from a pro-independence perspective, was the 28
per cent who had opted for ‘no’ (to Scottish secession) in 2014 and supported
‘remain’ in 2016. However, while targeting these voters there was a danger of
alienating the 14 per cent who had chosen both Scottish independence and
To mount a
drive for independence in the context of Brexit, therefore, was more complex a
proposition than it might seem superficially. Just as the surprising outright
victory in the Scottish Parliament elections of 2011 had presented the SNP with
both an opportunity and a threat, so did Brexit. It gave the SNP a new opening
that might be helpful to it in sustaining progress towards, or even directly
attaining, its long-term objective. The SNP had little choice but to seek to exploit
this position, and to be seen by its supporters to do so. But there was a risk
of failure, either if the idea of another referendum met with strong public
resistance, or if such a vote was held and produced defeat for the SNP.
Scottish government therefore proceeded with relative caution. At first it
pressed for special opt-outs and privileges within the Brexit process that – even
if they were practicable, which is far from clear – were not likely for
political reasons to be provided. It insisted, for instance, that no new
barrier should appear between it and the EU; and between it and the UK, even if
the UK left both the Single Market and Customs Union (a familiar concept to the
observer of UK-EU negotiations over the status of Northern Ireland). Unlike the
Welsh Government, the initial focus of the Scottish Government was bilateral
more than multilateral in nature, emphasising the relationship between Scotland
and the UK, and insisting that Scotland should possess a veto on key decisions.
The UK government has, as expected, not conceded to these demands, enabling the
Scottish government to assert that it is being forced to call for a further
independence referendum. Whether it takes place, and if so what the outcome
might be, is partly contingent upon the course of the Brexit process. Overall,
it seems the experience will either prove to have contributed to a break-up of
the UK, or entrenched the views of the sizeable minority in Scotland who are
discontent with membership of the Union. There was a reasonably high level of agreement
within Scotland about EU membership. But the determination of the UK government
to leave regardless could mean that this point of relative consensus will
become a basis for aggravating a pre-existing fundamental division within the
episode has taken place in parallel with a distinct but related period of difficulty
in the Northern Ireland peace process, with devolution suspended. Had the
Northern Ireland executive not ceased to function for other reasons, the
prospect of leaving the EU would surely have caused it serious problems.
Overall, there was a ‘remain’ result in Northern Ireland, by 55.8 per cent to
44.2. The vote was particularly divisive because it reflected and aggravated
the existing cleavage in the territory. Of those raised as Catholics, there was
an 85 per cent vote for remain, and only 15 per cent support for leave. Among
Protestants, on the other hand, 40 per cent voted remain and 60 per cent leave.
A second way of viewing this apportionment of support, closely associated with
the first, is through the prism of the view a particular individual took on
constitutional arrangements. Among those who were favourable to Northern
Ireland being under direct rule within the UK, 40 per cent were remain while 60
per cent were leave. Supporters of devolution within the UK split 58 per cent
for leave and 42 per cent for remain. Those who wanted Northern Ireland to be
incorporated into the Republic of Ireland were 85 per cent remain supporters,
while 15 per cent voted leave.
magnification of longstanding divisions in this territory is one of the most
malign aspects of the Brexit experience. This regrettable outcome is compounded
because of the implications for the Belfast or ‘Good Friday’ Agreement of 1998,
a key element in the peace process. While the text does not expressly state
that it is incompatible with the UK leaving the EU, it does not need to because
the assumption that both the Republic and the UK will remain within the EU
together is clearly fundamental to it. It might be held that both the Catholic
nationalist and Protestant unionist communities in Northern Ireland have a
shared interest in avoiding the possible return of conflict and the economic,
social and political disruption that would be attendant upon an abrupt
departure from the EU, with the appearance of barriers across the island of Ireland.
However, the Democratic Unionist Party (DUP), currently the largest single representative
of the Protestant community, is an enthusiastic supporter of leave, and of a
variety that maximises discontinuity, even while it recognises the problems
that would arise from the appearance of what is labelled a ‘hard border’ and
insists that it wishes to avoid it. Furthermore, the DUP was opposed to the
Belfast/Good Friday Agreement when introduced, and may not regard threats to
this accord in the negative light that others do.
outlook has taken on disproportionate significance since the General Election
of June 2017, a political disaster for Theresa May that has left the Conservative
government dependent upon DUP support in the Commons. Observers of the Northern
Ireland political scene have noted that the DUP contingent at the Westminster
Parliament constitutes a unyielding bloc even within its own party, perhaps
less directly connected to the territory it represents by being based partly in
London. It is pressure from this faction within the DUP that helped force the
UK government to maintain the seemingly impossible negotiating position of
leaving the Customs Union and Single Market; avoiding a ‘hard border’ in the
island of Ireland; and not allowing any new regulatory divergences to open up
between Northern Ireland and Great Britain. The DUP has converged with Brexit
enthusiasts within the Conservative Party who profess devotion to the
indivisibility of the union, and regard the EU as mendaciously exploiting the
Irish question as a negotiating tactic, rather than addressing genuine concern.
Even without the Northern Ireland issue, May faced an immense challenge in
delivering on the expectations she wilfully generated regarding the Brexit
process. But, at the time of writing, it seems possible that this dilemma will
be the central reason for the collapse of her programme.
In a sense,
Brexit is an English project. England voted by 53.4 per cent to 46.4 per cent
to leave. Opinion research shows a clear link between individuals identifying
themselves as English rather than British and being likely to vote for
departure from the EU in 2016. For those taking such a perspective, that Brexit
has proved a source of instability for the Union might not be a particular
concern. But England is not homogenous. In Greater London – with a larger
population than any of the components of the UK discussed above – 59.9 per cent
of those who took part supported remain, with 40.1 per cent voting to leave. Of
33 London boroughs, only 5 did not yield remain results. Brexit, therefore, is
territorially divisive not only for the UK, but for England. Furthermore,
England has no voice of its own in the Brexit process, beyond having delivered
the votes that prompted the adoption of this policy. There is no English
legislature or executive; and the institutional sub-units within it do not have
the same status as the devolved institutions of Wales, Scotland and Northern
Ireland. It is in effect subsumed within the UK. This conflation of England
with the UK is a central feature of the Brexit experience, as is explored in
the following section.
The United Kingdom
approach taken to Brexit at UK level has been to insist that the result of the
2016 referendum, despite lacking legal force, and regardless of the relative
narrowness of the result (51.89 per cent to 48.21 per cent), means that the UK
must leave the EU. The May government has insisted that territorial
discrepancies, with ‘remain’ results in Scotland and Northern Ireland
(alongside Greater London), are not relevant and that the UK should be
considered as a single homogenous unit. Moreover, the UK administration has
posited itself as the interpreter and custodian of the referendum outcome. It
has been willing only to consult with the devolved executives over the
essentials of policy, and has ultimately pursued its chosen path. Only
reluctantly did the May government concede to Parliament its so-called
‘meaningful vote’, and has done its best to ensure that its meaningfulness is
kept to a minimum.
this determination at UK level, the options available to those devolved
executives that are operative, in Wales and Scotland, have been limited. The
Supreme Court judgement of January 2017 may have seemed unhelpful to the May
administration. It insisted that statutory authorisation was required from the
Westminster Parliament for the UK to proceed with the Brexit process by
initiating Article 50 of the Treaty on European Union. Yet Parliament proved reluctant
meaningfully to deploy its revealed power; providing the Prime Minister with
the authority to commence without attaching any conditions. Furthermore, as an
aside to its main judgement, the Supreme Court stressed that protections
against interference from the centre in areas within the scope of the devolved
legislatures were not justiciable. This weakness in their constitutional status
would become significant.
For a time,
an alliance formed between the executives in Cardiff and Edinburgh over the way
in which Brexit should be legally implemented. The combined political pressure
they exerted forced the government in London to negotiate with them over this
issue. Ultimately, concessions were made, allowing a greater role for the
devolved institutions in the European
Union (Withdrawal) Act 2018 and associated protocols than the UK government
had initially envisaged. While the government in Wales accepted the terms that
were on offer, the Scottish executive did not. The Scottish Parliament
expressly withheld approval for the law through voting down a Legislative
Consent Motion. However, the UK government asked the Westminster Parliament to
proceed with passing the Bill anyway. It obliged. The Supreme Court statement
of 2017 suggested that, though such a move was exceptional, there was no legal
means by which it could be prevented. Whether or not a constitutional
convention had been violated was a matter of opinion. The judiciary did not
want to be drawn into ruling on any such dispute.
within the context of the UK constitution, a determined executive in Whitehall
with the compliance of the Westminster Parliament can impose itself. This power
balance is significant from the point of view of the way in which the UK
constitution might be configured post-Brexit, and the division of authorities
between the centre and the territories. There seems likely to be a disposition
in favour of the former. But with regard to the position of Northern Ireland,
the UK authorities found themselves negotiating with a force more powerful than
themselves: the EU. Northern Ireland had no executive to represent it, and how
effective it would have been over this issue had it been functioning is
questionable. But the solidarity that the EU has shown to date with the
Republic, and with those in Northern Ireland who do not wish to see the peace
process and the benefits associated with it compromised, has proved a far more
effective source of resistance. As the UK continues to pursue, of its own
volition, a potentially perilous course of action, it can expect more pressure
upon it from the EU, perhaps undermining its continuing existence as a state.
aggravated existing disputes between those who support the continuation of the
Union in its present form and those who wish to leave it. It has provided
rhetorical ammunition to the latter. In the case of Northern Ireland, it
presents in some sense prospects for the attainment of the long term goal of
the nationalists. The island of Ireland could become more integrated and more
separate from Great Britain. But there are other possible outcomes, including a
deterioration in the peace process. Were the devolved system of government not
already in suspension in Northern Ireland, Brexit would have taxed its ability
to continue to operate in a satisfactory fashion. In Scotland too, a new
potential path to independence has been opened by Brexit, but this raising of
the stakes brings with it the threat of defeat as well.
position of Wales is complex. While the governing (and non-secessionist) Labour
Party (and, among others, Plaid Cymru) supported a ‘remain’ vote, 23 June 2016
produced the opposite result in this nation. Subsequently, the Welsh executive
has used the circumstance of Brexit to press its already existing commitment to
what it depicts as a quasi-federal constitutional approach for the UK, in which
the sub-components of the Union are more fully incorporated into the taking of
important decisions. It has achieved some success, but of a limited nature.
England and Brexit is to reveal some of the central paradoxes of the UK
constitution and of the Brexit process. Those who purport the greatest
commitment to the Union often seem curiously unable to distinguish between
England and the UK, treating them as interchangeable, emphasising the qualities
of one or the other entity as suits the needs of the occasion. The overall
‘leave’ result for the UK rested on English votes. Among the three other
components of the UK combined, there was a ‘remain’ majority, with Scotland and
Northern Ireland producing decisive votes in favour of continued membership
(and Wales voting ‘leave’). From the outset the UK government has been
insistent that this divergence should have no significance to the
interpretation of the outcome. Yet it is not clear that England necessarily
benefits from this apparent privileging of its status. For the purposes of
intra-UK discussions pertaining to Brexit, it has no representation of its own
separate from that provided by ministers who act on behalf of the UK executive.
Furthermore, opinion within England itself is heterogenous. London produced a
large remain majority in 2016; and while there were leave results in all other
English regions, there were divergences of opinion within them.
federal perspective, certain observations present themselves. While democratic
autonomy has been granted to parts of the UK, it has not been balanced by the
inclusion of those territories in central decision making, or a recognition
that they have a significance that cannot simply be overwhelmed by the
numerical superiority of England. Equally, England has been neglected in the
process of devolution. Its very size relative to the whole is the chief reason
that the establishment of a legislature for the whole of England would probably
deliver significant difficulties and few gains. Logic suggests that regional
devolution on a comparable scale to that provided to the other parts of the UK,
recognising the wide internal diversity of England, would be an appropriate
response to the anomalies revealed by Brexit. The English regions might then be
incorporated into federal mechanisms alongside Wales, Scotland and Northern.
Furthermore, Brexit has demonstrated that protections for the status of the
devolved institutions, if Parliament wishes to interfere with them in some way
or to alter the overall system, are weak. They rest in conventions that are
open to divergent interpretation or indeed to simply being discarded. Under a
federal arrangement, the position of all the units would be set out in a
constitutional text. It would be subject to alteration only by adherence to a
special, inclusive constitutional procedure, in contrast to the ‘unwritten’
constitution of the UK, which can be altered unilaterally by Parliament using
regular legislative processes. The courts would be responsible for discerning
the respective powers of the state and territorial institutions, and Parliament
would no longer be the umpire in a game in which it is also a participant.
But a more
immediate issue, that might forestall the pursuit of such reforms, involves the
stability of the Union. The divisiveness of Brexit has two aspects in this
regard. First, it has created opportunities for those seeking to secede from
the UK, providing them with credible grievances and openings to act upon them.
There is some congruity of outlook between this group and those who identify
themselves as ‘English’ rather than British, who – according to opinion
research – were far more likely to vote leave in 2016. A commitment to
Englishness above all is possible to reconcile with a disregard for the continuation
of the UK. But of equal significance are the divisions between those who
present themselves as supporters of the Union. Among their number are both
supporters of EU membership who hope at least to minimise the impact of
leaving, and some of the most enthusiastic advocates of exit. Within this
latter group there is a reluctance to accept the implications of their dislike
of one Union for the integrity of the other, to which to they profess the
strongest of attachments.
In this lecture our Director Brendan Donnelly takes stock of the Brexit negotiations. He argues that the painful progress of these negotiations is largely due to the fundamental weaknesses of the current British state about which Stephen Haseler wrote so eloquently. Prominent among these weaknesses are national exceptionalism, constitutional immobility and over-centralisation. Brexit is submitting the U.K.’s institutions to an existential test which they have no guarantee of surviving intact.
Professor Stephen Haseler (9 January 1942 – 20 July 2017) was the founding director of the Global Policy Institute and a Council Member of the Federal Trust until his death in 2017. In honour of his memory, the Federal Trust and the Global Policy Institute will host an annual Stephen Haseler Memorial Lecture. These annual lectures will focus on themes and issues that were close to Stephen’s heart.
The policy of exiting the European Union (EU) pursued by the present United Kingdom (UK) government has produced many fraught complexities. Some involve the external orientation of the UK, centring upon but extending well beyond its trade relations. Others pertain to the internal political arrangements of the UK. Falling within this latter category are questions involving the balance of power between the devolved and UK legislatures and executives in the prospective post-Brexit environment, and the place of both within the wider constitutional system of the UK.
The promise of the ‘leave’ campaign in the lead-up to the EU referendum of June 2016 was that departure offered a means of ‘taking back control’. Questions that this claim prompts, and that have recurred following the vote, are: who will assume this repatriated authority, and over what? A connected issue that has not yet received the same level of attention is more fundamental still. Eurosceptic accounts of the EU often depict it as a self-serving entity imposing itself on member states, lacking the legitimacy that can only derive from genuine consent from those countries and their populations to participation in this continental polity. Brexit, according to the logic of such narratives, represents a reassertion of the popular will leading to the recreation of a legal and constitutional order outside the EU, founded in the agreement of the public. A close examination of the handling of UK exit from the EU in relation to the devolved institutions, their authorities and their populations is one way of testing the validity of such a perception. It can cast light on whether the UK constitution and any new features it is about to take on after Brexit meet the high standards of government by consent to which advocates of Brexit purport to subscribe.
If and when powers are repatriated from the EU, they will need to be wielded at some level in the UK. The UK, Welsh and Scottish governments have agreed in principle that certain responsibilities – including some that might fit within policy areas that are in general devolved – must be exercised centrally, if the coherence of the UK and its single market are to be preserved (though the Welsh and Scottish governments have also expressed a desire to maintain regulatory alignment with the EU single market after departure). In October 2017 the UK, Welsh and Scottish executives issued a statement of their shared outlook, referring to the importance of maintaining the ‘UK internal market’, the need to comply with ‘international obligations’, the ability to secure ‘new trade agreements and international treaties’, the ‘management of common resources’, the guaranteeing of ‘access to justice’, and the maintenance of ‘security’. However, securing agreement about the precise powers involved, how they should be identified, and who should make such decisions, has proved a difficult proposition. At the centre of the dispute that has arisen has been the European Union (Withdrawal) Bill, completing its parliamentary stages at the time of writing. This paper considers the implications of this controversy for our understanding of the territorial constitution of the UK, and the basis on which it is composed.
The rise of devolution
If Brexit comes about, whatever it entails, it will not amount to a restoration of the UK as it was at the point of accession to the Treaty of Rome in 1973. Changes in the outside world cannot be fully reversed. The UK will have no choice but to continue to engage with the network of trading blocs, supranational institutions and associated rules and procedures that it has helped shape over the past four-and-a-half decades. Nor can post-1973 internal transformations simply be undone. Some of these domestic developments have been a direct consequence of participation in continental integration and the supremacy of European law that it necessitates for Member States. It is a particular irony of the Brexit process that the most consuming legislative challenge it has created for the UK has been the attainment not of a break with the past, but of legal continuity after the point at which UK membership of the EU ceases. Another fundamental shift internal to the UK in the period since 1973 – the rise of devolution in Wales, Scotland and Northern Ireland – was not a direct consequence of participation in the European project. Nonetheless the existence of these tiers of governance creates immense complications for the effort to leave, and simply to disregard it is not politically viable.
Devolution has become an accepted part of the UK constitution. It was introduced to Wales and Scotland – and reestablished in Northern Ireland – from the late 1990s onwards. In each case, the decision to form elected legislatures and associated institutions was approved in advance by referendums held in the territory concerned. In this sense, devolution is grounded in an exceptional form of popular approval (with a further such vote held and won on the extension of devolution in Wales in 2011). Advocates of leaving the EU often refer to the existence of an irresistible imperative created by the referendum of June 2016, to which the structures and rules of our constitutional system are subordinate. Such a premise is hard to reconcile with established principles of representative democracy. Furthermore, even if accepted on its own terms, it faces difficulties. In as far as it impinges upon devolution, this supposed overriding obligation to leave is confronted with sources of legitimacy the same as its own.
The salience of this conflict is magnified by the fact that in two of the devolved territories, Scotland and Northern Ireland, there were ‘remain’ majorities in June 2016. While it is arguable that a referendum of the whole UK might properly take precedence over a popular vote in one of its component parts, UK constitutional thought in this area is not fully developed. Should, for instance, a decision for the whole UK that clearly engages the interests of devolved systems require more than a simple majority? Should there be a threshold of some kind, such as an absolute majority of the electorate including abstentions supporting a change, or a supermajority of two thirds of those who take part? Ought there to be a vote for change in every sub-unit of the UK, or at least a majority of them? Such issues were certainly not thoroughly investigated or widely discussed in advance of the 2016 EU referendum. There is no ‘written’ UK constitution in which such rules could be included, and none of the referendum results involved had legal force, leaving not only their precise meaning but also their importance relative to each-other obscure.
Since their foundation, all three devolved institutions have experienced aggregate expansions in their scope for action. Some of the most recent enhancements, for instance those contained in the Scotland Act 2016 and Wales Act 2017, were implemented shortly before or even after the EU vote of 2016 took place. Devolution, therefore, is not only politically entrenched, but is dynamic in nature. It is a force that the present government has to take into account while pursuing its Brexit policy. Indeed, the advent of devolution could be said to have marked a fundamental change in the nature of the UK constitution, in which power is no longer concentrated at the Westminster/Whitehall level, but shared between this tier and its devolved equivalent. The joint intervention by the respective first ministers of Wales and Scotland, Carwyn Jones and Nicola Sturgeon, in opposition to aspects of the European Union (Withdrawal) Bill, to which they proposed a series of amendments, is significant in this regard. It suggested a shared conception of constitutional norms regarding the autonomy of the institutions they represented, that they were asserting against potential encroachments.
In a sense, the UK might be held to have taken on some of the characteristics of a federal system, within which the devolved territories are akin to states, while the governmental bodies based in London resemble federal organs. Indeed, the Welsh government has promoted the idea that the UK constitution should be viewed partially from a federal perspective. The discussion currently taking place about the powers it is necessary to reserve centrally in the UK is the type of debate that might be expected during the formation or recalibration of a federal constitution. Moreover, both the Welsh and Scottish governments are motivated by a European outlook (notwithstanding the ‘leave’ result in the former nation). One of the purposes for which they seek to deploy the powers they hope to obtain at devolved level is to maintain alignment with the Single Market (though how far this stance might prove to be compatible with their commitment to retaining a unified UK market remains to be seen, if the UK government seeks to diverge from the EU regulatory framework). Once again, a federal perspective is relevant, with two sub-units of an exiting Member State exhibiting an attachment to a wider continental polity – and appearing to prefer compliance with EU law to the prospect of being subject to the Westminster Parliament.
Limitations upon devolution
To some extent circumstances following the 2016 referendum have served to draw attention to the importance of devolution to the UK polity, and the changes to the underlying system it might imply. But this highlighting has come about through the assertion of contrasting, even conflicting, models which – though they are not necessarily compatible with each-other – have impetus of their own, and pose a threat to some aspects of devolutionary governance as it has developed. One challenge is relatively novel in the UK constitutional context. It rests on the view that, through the 2016 referendum, the UK people as a whole made a decision by which they are all bound. That majorities in two devolved territories, Scotland and Northern Ireland (and in London) voted to remain has, on this interpretation, no bearing either on the decision to leave, or even on the type of departure that should be sought. Responsibility for interpreting and implementing this result, according to this school of thought, falls primarily to the UK executive. Unsurprisingly, the main advocates of this outlook are Brexit enthusiasts and UK ministers (some of the individuals concerned fall into both categories, others only one). Over time limited concessions have been made to the UK Parliament and devolved institutions as having a secondary role in shaping the outcome. But this approach leaves no room for meaningful engagement from such groups, that are perceived as a source of unhelpful distraction, or as seeking to dilute or perhaps prevent Brexit.
A second perception – not entirely congruent with the first – that draws attention to the importance of devolution while challenging it, has a longer established place in UK constitutional perception and practice. It is founded in the doctrine of parliamentary sovereignty. The relationship between this theory and the circumstances of Brexit is complex. Throughout its development a core feature of Euroscepticism has been the rhetorical veneration of parliamentary sovereignty, and the claim that it is incompatible with UK participation in continental incorporation, a project that is partly for this reason undesirable.
However, the claimed commitment of those who advocate leaving the EU to the legal supremacy of the UK Parliament has proved inconsistent with their post-referendum attitude towards Parliament. Eurosceptics exhibited hostility to the idea that express statutory authority from Parliament should be required for the UK government to activate Article 50 of the Treaty on European Union, the act required to instigate the departure process. They preferred the idea that the executive should be able to operate on its own discretion, deriving legitimacy from the exercise in direct democracy of June 2016, rather than the representative institution in Westminster.
Furthermore, supporters of leaving have disparaged the idea that Parliament should be able substantially to alter the negotiating position of the government (for instance, with regard to the Customs Union), or that it should have the opportunity to vote for the UK to seek to prolong or terminate the process of leaving. However, the doctrine of parliamentary sovereignty still has uses from this perspective, for so long as the Westminster legislature is willing to accept the other premise promoted by ‘leave’ advocates, namely that of its being subordinate to an overriding popular will expressed on 23 June 2016. For it is through the traditional principle that an Act of Parliament is the ultimate source of legal authority that any objections raised from devolved level can, ultimately, be overcome.
In bringing about an intersection between competing constitutional norms, the UK government policy of leaving the EU has revealed much about devolution and its position within the wider system, and will continue to do so. The UK government has felt it necessary to negotiate with the devolved executives through the specifically established machinery of the Joint Ministerial Council on European Negotiations. It has also made various concessions to them. Crucially, it has introduced amendments to the European Union (Withdrawal) Bill that have the effect of reversing a key presumption in its handling of the distribution of powers between the devolved and UK legislatures. The initial provisions, contained in clause 11 of the bill, created an assumption that a repatriated power resided with the UK Parliament unless express provision was made to the contrary. The objection to this proposal was that it contradicted the reserved powers model, under which the only powers located at the centre were those specifically allocated to it. Clause 15 of the amended European Union (Withdrawal) Bill now gives expression to the principle that the default position is the devolution of a law-making power.
In pursuing their opposition to aspects of the Bill, the Welsh and Scottish governments, alongside the use of coordinated joint public intervention, deployed two tools: the threat of withholding ‘legislative consent’ to the Bill; and the introduction of bills into their own legislatures, that would provide legal continuity in terms they deemed acceptable (though there are differences between the devolved bills). Clearly these approaches have purchase within the UK political and constitutional environment. That a UK government has had to contend with and make concessions to outside forces demonstrates how much the UK constitution has changed in the past two decades.
However, the experience since June 2016 has also revealed the limitations to which this transformation is subject. The devolved systems and their powers may be politically entrenched, but they lack any special legal protection. The Scotland and Wales Acts of 2016 and 2017 respectively contained commitments to the principle that the existence of the devolved institutions in the nations concerned could only be revoked following consent through referendums in the territories involved. They also included the undertaking, previously existing only as a political understanding or convention, that the UK Parliament would ‘not normally legislate with regard to devolved matters without the consent of the’ devolved legislature concerned. However, in the Article 50 judgement of January 2017, the Supreme Court went out of its way to note that it did not regard these provisions as being enforceable in a court, and stressing that the commitments they described were only political in nature, despite their being included in statute. Ultimately, the UK government, provided it has the consent of the UK Parliament, can overrule its devolved equivalents. Indeed, UK ministers have been careful throughout their negotiations with the devolved executives to reserve their position, allowing for the possibility they will, if necessary, proceed without approval from devolved level. At the time of writing, while the Welsh executive has– while expressing reluctance about doing so – obtained legislative consent to the European Union (Withdrawal) Bill, the Scottish Parliament has withheld it. Parliament is therefore on the brink of passing an Act notwithstanding the objections of a devolved legislature demonstrating where the ultimate authority still resides.
The legal and constitutional imbalance between the devolved and UK tiers is further emphasised by the handling of the continuity bills introduced to the Welsh and Scottish legislatures. Though passed by the legislatures concerned, they were both referred by the UK government to the Supreme Court to decide whether they fall within the competence of those legislatures. Under this procedure bills do not become law unless the legislation concerned is deemed to be within the devolved remit. There is no corresponding means of challenging the constitutionality of an Act of the UK Parliament (the closest equivalents being the review of compatibility with European law and with the European Convention on Human Rights). The challenge to the Welsh continuity legislation has been dropped in accordance with an agreement formed between the Welsh and UK governments over amendments to the European Union (Withdrawal) Bill and associated commitments. However, Supreme Court hearings regarding the European Union (Legal Continuity) (Scotland) Bill are scheduled for 25-26 July. Assuming no agreement is reached between the respective governments in the interim, if the bill is found to be within the powers of the Scottish Parliament, the possibility remains that the UK Parliament can legislate to supersede the Scottish law with its own Act. To do so will be in some respects politically unappealing. But to do otherwise might create other political difficulties. It could also undermine the existing policy of exit followed by the negotiation of new trade agreements. On the other hand, if the Supreme Court rules the bill outside the powers of the Scottish Parliament significant limitations upon the Scottish Parliament will have been made explicit in a different way.
The combination of the Welsh and Scottish governments during 2017 to present a united opposition to the UK government proposals as encapsulated in the European Union (Withdrawal) Bill was a significant event from the perspective of the politics of the UK constitution. But the extent to which it suggested the pursuit of a shared vision of the UK polity should not be overplayed. The Cardiff-Edinburgh alliance has been partly one of temporary convenience. The ultimate goals of the Labour executive in Wales and the SNP administration in Scottish diverge. The former seeks a more federal structure for the UK; the latter retains the objective of leaving the UK altogether. The engagement of the Scottish government, in collaboration with the Welsh government, in discussion and negotiation about the future constitution of the UK was arguably in large part a tactical matter. It coincided with an apparent loss of political and electoral momentum for the cause of Scottish independence. To be seen to have tried to engage in good faith with the UK government, but to have been treated in an unfair, overbearing fashion, might open the way for a revival of the independence option. That, ultimately, the Welsh came to terms with the UK government, while the Scottish – as yet – have not done so is evidence of their divergent perspectives.
The limitations upon devolution as a harbinger of a new constitutional model for the UK, perhaps federal in its potential, are illustrated in another fashion. It is uneven in application. A third devolved territory, Northern Ireland, has been absent from negotiations (aside from the presence of official observers), because its executive is not presently operative. What policy the Northern Ireland Executive would be able to form in this area, were it functioning, and whether and how far it would align itself with Wales and Scotland, is unclear. Further differentiation manifests itself in the way that all three devolved systems function differently to each-other, and the remainder of the UK, that is to say England, where the majority of the UK population lives, lacks any form of devolved legislature at all (though there is limited devolution to London and to some local authorities – or combinations thereof – in England). The asymmetrical nature of devolution in the UK makes claims about the emergence of a comprehensive system difficult to assert. Furthermore, unlike under many federal constitutions, the territories are not formally incorporated into the legislative process. The Joint Ministerial Committee is a non-statutory body that does not take binding decisions. If it is an embryo for some kind of federal council or chamber, it is in a very early stage of gestation.
Implications for the future
On the basis of this discussion, certain conclusions can be advanced. The UK is in the process of refounding its legal and constitutional order, to accommodate Brexit. The central government claims to be the custodian of an irresistible obligation to implement a particular response to the referendum of 2016, that legitimises its plans for changes impacting upon the fields of operation of the devolved institutions. The UK executive is willing, in the last resort, to draw upon the legislative supremacy of the ‘sovereign’ Westminster Parliament to impose measures it judges to be appropriate. Whatever arrangements are established may be presented as only provisional in nature. However – as those supporters of Brexit who fear the adoption of ‘backstop’ customs arrangements know – that which is devised as temporary can prove to be enduring. The UK could, therefore, be in the process of a fundamental constitutional reconfiguration that partially reverses devolutionary patterns of development of the preceding two decades. This project is taking place in a fashion that is not wholly consensual, and involves the UK government deploying, or at least threatening to deploy, parliamentary sovereignty for purposes of legal coercion.
Such an approach could be seen to be in accordance with the UK constitutional tradition. The Union has never been a partnership of equals, and at every stage of its creation, England was clearly the preeminent force. Thus while the UK is sometimes depicted as an unexceptionally stable state, it is also characterised by internal tensions, involving the places of Ireland, Scotland and Wales within it. Brexit has already exacerbated some of these tendencies and raised renewed doubts about the future of the Union. To impose a post-Brexit arrangement in the face of present objections seems, even from the point of view of the narrow self-interest of the UK executive and the governing Conservative and Unionist Party, a questionable act. The system itself will be vulnerable to the charge that it is inherently flawed and lacking in democratic legitimacy.
Moreover, arguments currently taking place are likely to recur in some form in the future, on occasions when – assuming Brexit goes ahead – the UK government wishes to diverge from EU law in a way to which one or more of the devolved executives object. Constitutional arrangements after exit could consequently create a particularly unstable dynamic. It is already clear that, in the short term, the judgement that a referendum on EU membership might resolve controversy over the issue was mistaken, and that the opposite has proved to be the case. Even if the UK is outside the EU, it is likely that it will need to make regular decisions about its relationship with this organisation and the regulations it produces, and that consensus about the appropriate approach will be absent. One, but surely not the only, source of such disagreement will be the devolution dimension.
However, it remains possible that the UK will not leave the EU at all. It is also plausible that the UK will depart on terms that make meaningful divergence from European law difficult or impossible; or that any theoretical discretion the UK possesses will be rarely if ever applied in practice. In such circumstances the current disputes about where to locate repatriated powers will come to resemble a dispute between relatives over an inheritance that ultimately amounts to little. Like such a disagreement, it will have been revealing regarding the nature of the relationship between those involved, and will have been damaging to it.
A post-Brexit constitutional system founded on an imbalance of power and the use of legal compulsion, thereby incorporating instability, would be in keeping with the history of the UK political system and in this sense would represent a promotion of the traditional constitutional values that advocates of Brexit often claim to support. For those who prefer a different approach, a federal system merits consideration. It could be of particular value because of the potential to encompass not only the dispersal of power, but the incorporation of the territories into central decision making, preferably through their inclusion in a federal chamber in the legislature. This presence would give material grounding to some of the ideas of shared sovereignty that may seem implicit in devolution but are not yet fully realised. Brexit has exposed gaps and tensions in the UK system. It has also demonstrated that in certain areas, despite the development of devolution, the UK is far from a fully federal system. A more decisive shift in this direction could be a means of addressing some of the problems connected to
The Centre for Federal Studies at the University of Kent convened this conference on ‘Devolution in England: international perspectives, politics and policy ideas after Brexit’ on 20-21 June 2017 in Canterbury, together with the Canada-based Forum of Federations, the James Madison Charitable Trust and the Federal Trust.
A gathering of leading politicians, as well as senior academics and influential policy-makers, reflecting on the emerging federal shape of the United Kingdom and in particular on how to devolve power to England and its constituent parts – towns, cities and counties, with the aim to draw on cutting-edge research and experience of federal devolution in countries such as Canada, Germany or Switzerland in order to formulate fresh policy ideas.
Thibaud Bodson (Free University Berlin)
Jonathan Carr-West (LGiU)
Rupak Chattopadhyay (Forum of Federations)
César Colino (St Antony’s, Oxford & Open University, Spain)
John Denham (University of Winchester)
Klaus Detterbeck (University of Göttingen)
Lord (Maurice) Glasman (House of Lords)
Willi Haag (former member of the Council of St. Gallen)
Lucio Levi (University of Turin)
Mark Morrin (ResPublica)
Meg Russell (UCL)
Jane Wills (Queen Mary University of London)
Programme and information on sessions:
Tuesday 20 June 2017
Session 1. Federal Devolution in Theory and Practice (I): new concepts
Chair: Rupak Chattopadhyay (Forum of Federations)
Confirmed speakers: Thibaud Bodson (Free University Berlin); Jonathan Carr-West (LGiU); Paolo Dardanelli (Kent); Neophytos Loizides (Kent)
Session 2. Federal Devolution in Theory and Practice (II): examples from Canada, Germany, Spain and Switzerland
Chair: Felix Knüpling (Forum of Federations)
Confirmed speakers: Rupak Chattopadhyay (Forum of Federations); César Colino (St Antony’s, Oxford & Open University, Spain); Klaus Detterbeck (University of Göttingen); Willi Haag (Council of St. Gallen)
Session 3. A new constitutional settlement for England in a more federal UK?
Chair: Adrian Pabst (Kent)
Confirmed speakers: Maurice Glasman (Labour Life Peer); Meg Russell (UCL)
Session 4. English devolution: advances and limits of city and metro mayors
Chair: Rupak Chattopadhyay (Forum of Federations)
Confirmed keynote speaker: John Denham (former Cabinet Minister; University of Winchester)
Invited panellists: Jon Cruddas (Labour parliamentary candidate for Dagenham and Rainham), tbc; Andrew Percy (Minister for Northern Powerhouses), tbc; Richard Brown (Centre for London), confirmed
Post-dinner Panel conversation on the life and legacy of John Pinder
Chair: Terry Bishop (Chair, JMCT)
Confirmed panellists: Stanley Henig (Vice Chair, JMCT); Lucio Levi (University of Turin); Angus Sladen (Honorary Treasurer, JMCT)
Wednesday 21 June 2017
Session 5. New policy ideas for a devolved settlement in England: more mayors, stronger counties, or an English parliament?
Chair: Adrian Pabst (Kent)
Confirmed speakers: Jonathan Carr-West (LGiU); Mark Morrin (ResPublica); Jane Wills (Queen Mary London)
Session 6. Brexit and the consequences for devolved external affairs
Chair: Brendan Donnelly (Federal Trust)
Speaker: Richard Whitman (Kent), author of “Devolved External Affairs: The Impact of Brexit”, research paper published by Chatham House
Session 7. Panel debate: federal devolution in a comparative perspective
Invited Chair: Mary Southcott (Vice Chair, Campaign for the English Regions)
Confirmed panellist: Clive Grace (Cardiff Business School); Feargal Cochrane (Kent)
Roundtable discussion with Rupak Chattopadhyay (Forum of Federations); César Colino (St Antony’s, Oxford & Open University, Spain); Klaus Detterbeck (University of Göttingen); Willi Haag (Council of St. Gallen)
Presentation by Dr Hywel Ceri Jones at the Conference held at the University of Swansea organised by the Morgan Academy and Schools of Management and Law
25th November 2016
Let me say at the outset that I was one of the 14 million Remainers, though I was also in favour of radical reform of the EU and indeed of the UK. I campaigned to remain in the EU and I was, and continue to be, distressed by the result of the vote, particularly in Wales and not least in Swansea – my home valley. I am more and more concerned about what the future holds for Wales, and the discussions today have done little to change this view.
Like many others, I am deeply perturbed both at a personal level and for our young people on the possible loss of my rights to the benefits of European Citizenship. They complement and enrich my privileges as a citizen of the UK. As a Welsh European, I simply do not accept that the UK Government can move to eliminate these rights without the necessary scrutiny and approval of Parliament. That is why the forthcoming deliberations in December in the Supreme Court are so critically important.
It is in my view totally anachronistic, given the concern of some but not all Brexiteers to stress the importance of respect for sovereignty and rule of law in the UK, that the Government has been seeking to exclude Parliament from approving and motivating the exercise of Article 50 powers. What better way to demonstrate to the British public that our Parliament has taken control of the destiny of the country.
I have touched on the importance of the question of individual rights, but the same applies equally to the position of enterprises, as the consequences of Brexit go well beyond those of concern to individuals, considerable as they are. International enterprises considering investing in the UK and anticipating workers settling here will have to consider the consequences of those workers not having the same access to public services while here as they would have previously enjoyed as EU citizens within a member state. Decisions will need to be taken as to the extent to which rights currently enjoyed by EU citizens resident in the UK will be replicated for them as well as for UK citizens following any Brexit. Public and private companies are also legal persons and as such have rights which could be lost.
The same issues arise in reverse with regard to UK enterprises which wish to establish bases or branches abroad within the EU. Their workers and their families currently enjoy a range of benefits, including health care, as a consequence of being EU citizens. Whether such enterprises will be able to sustain the same presence – in terms of the number and quality of their workers – if and when those benefits are lost or are subject to question is unclear. Nor can their continued existence be taken for granted. Each benefit will be a matter for each Member State unless there is a firm agreement with the EU as a whole.
These problems will clearly affect UK enterprises seeking to attract skilled workers from abroad and skilled UK workers contemplating enhancing their prospects and experience through working abroad. The net result might well be to decrease the quality of the UK’s pool of workers. This all once again emphasises the importance of Parliamentary sanction for withdrawal, as Parliament should have the responsibility to scrutinise the proposed withdrawal in terms of its effect on such corporate persons. I note that the High Court specifically referred to the rights of companies in its Judgement.
Both Wales and Scotland will intervene in the appeal to the Supreme Court. Both devolved governments will probably argue that the consent of the devolved legislatures should be sought before Parliament legislates to leave the EU on the basis that such legislation will change their legislative competences. This will be a significant intervention, as the Scotland Act and Wales Bill both provide that the UK parliament recognises that it should not normally legislate in ways which affect devolved matters without the consent of those legislatures. We can all see the dangers here to the continued unity of the UK if these devolved arrangements are undermined, especially given the PM’s assurance that they would be fully involved in all stages of the negotiation process. The parallel discussions taking place today in Wales of the British Irish Council may well reveal the extent to which the developing positions on Brexit in Scotland, Northern Ireland and Wales reveal common ground or divergences.
Internal Market and free movement of persons
To date both in London and here in Wales,the debate has centred primarily around the question of the importance of the internal market. Carwyn Jones has called for a “full and unfettered” access to it as vital to the long term interests of Wales, whereas Nicola Sturgeon has put forward the Scottish case to continue to enjoy membership of the internal market. I will not enter into the raging debate on the possible models the UK might seek to negotiate for the future. I wish today to comment on the sensitive issue of the free movement of persons, one of the four fundamental freedoms (capital, services, goods and persons) of the EU’s internal market. There has never been any thorough discussion on the pros and cons of this provision in the UK primarily because Farage and some of the tabloids succeeded in confusing this subject by bundling into one pot of negativity the question of free movement of European citizens, the problems of regular and irregular migration, border control and the handling of the refugee crisis, as well as the growing need for effective anti-terrorism measures. The panel discussion this morning illustrated well the continuing confusions on this subject.
Earlier this week at another conference held at Cardiff I heard a leading Brexiteer argue the case to ensure the continued free movement of workers most especially to meet our needs for skilled labour in a number of sectors – aeronautics and engineering, agriculture and the food and drink industry, construction, public health (especially for the NHS) tourism and hospitality, financial services and so on. In other words calling for some specific ‘opts back in’ within the framework of an overall EU opt out, presumably in the hope of the EU as a whole agreeing in the final negotiations to such derogations which the UK could pick and choose.
This is uncharted territory for the UK and for the EU, but an agreement along these lines, combined with access for the UK to the Single Market will be very difficult to secure without the EU putting at risk its own strategic commitment to the internal market, of which the freedom of movement is an integral part. For the EU to open the way to a pick and choose approach could invite other Member States to do likewise and I would expect the newer Member States to resist fiercely. This is why the likelihood of securing this seems so very slim. It is in this spirit that I interpret President Tusk’s statement that the only choice on offer is between Hard Brexit and No Brexit. That is why too the statements hitherto from Chancellor Merkel, President Juncker and others have been so uncompromising.
Preserving the integrity of the Single Market is especially important too at a time when the EU is reforming itself to strengthen its internal market arrangements to improve the free movement of services, coupled with the digitalisation of the internal market, precisely the kind of improvements which the UK would welcome and benefit from if it were to retain membership of the internal market.
This afternoon I want to raise briefly four points of policy concern to me with particular regard to Wales.
Firstly, the question of the free movement of researchers – not just because of its evident vital importance to our universities but also as a crucial factor in the UK- wide and Welsh strategy to invest more imaginatively in research and innovation so as to build our economy in a long term perspective, with greater mobilisation of the private and public sectors working in collaboration with universities. The case for the mobility of researchers was made powerfully during the referendum campaign but, as we know to our cost, was sidelined by other issues. We need once more to spell out to the public the message so succinctly put by Stephen Hawkins – “free movement of scientists is as important for science as free trade is to market economics”. Given the fragile state of the Welsh economy and the likely impacts of Brexit in so many fields, I see this as a matter of serious concern.
Since 2015, as part of its continuing reform process, the EU decided to put university and higher education at the centre of its 2020 strategy to help drive the transformation of our economic and social situation. Through the Horizon 2020 programme the aim has been to scale up cooperation between universities to tackle the most critical global problems we face, such as climate change and environmental sustainability, and health and ageing challenges. Most importantly for Wales, it is helping us build up the stock and quality of research scientists where we continue to have a sizeable shortfall.
In defining its negotiating stance, I would urge the Welsh Government to place a high priority on participation in the EU’s strategy for investment in research and innovation, most especially continued participation in the Horizon 2020 programme which is already making an important difference in Wales. The free movement of researchers clearly needs to be examined in the overall context of the pros and cons of free movement of persons.
My second concern relates to the Erasmus programme which is already established as a world brand, connecting universities across the globe. By 2020 5 ½ million Erasmus students will have participated and well over 4000 academic staff , involving virtually all universities in Europe . The growth of strategic inter-university partnerships backed by the programme has helped to embed the internationalisation of study experience in universities across Europe, enhancing their reputation and contributing to reform in the structure of degrees and qualifications .
My conclusion is clear: the Welsh Government should argue strongly the case for Wales, and indeed the UK to continue to participate fully in the Erasmus programme, seeing it as a powerful instrument of valuable long-term collaboration benefitting present and future generations of students . I believe it should be another top priority in the Welsh Government’s negotiating stance. We should never forget that 75% of 18-25 year olds voted to remain, nor that 16-18 year olds were deliberately excluded from the vote despite the precedent of the Scottish referendum and the implications for their futures. This would demonstrate the strategic importance attached by the UK Governments to investment in students to build our economic and diplomatic future, as our own and foreign students will take up important positions all over the world in their future careers in many walks of life.
The European Investment Bank and Welsh infrastructure
My third concern is that a potentially serious consequence would be the cessation of substantial low cost long term lending by the European Investment Bank (EIB) in the UK, an issue barely mentioned during the referendum campaign. In Wales and in Swansea especially, we already have had good reason to value the role and interventions of the EIB, most spectacularly with the development of the second campus at Swansea University. We can today appreciate and applaud the results of the entrepreneurial energy of this university in securing the EIB investment and also its impact in south Wales on the creation of jobs.
The EIB is the EU’s “house bank”, the largest multi-lateral lender in the world. It specialises in lending for economically and viable infrastructure projects. As a member of the EU and EIB shareholders, the UK automatically qualifies to receive EIB loans. Like other large members, the UK has a 16.1% shareholding.
There is no precedent for an EIB shareholder leaving the EU. Let us be clear: unless exceptional arrangements are agreed unanimously by the other Member States and shareholders, the presumption must be that if Brexit takes place, the UK as a non EU member will cease to be a shareholder of the EIB and then no longer qualifies for EIB lending. It is true that around 10% of EIB lending has historically gone to non-EU members. This has largely been channelled to developing countries such as former dependencies of Britain and France (or to countries aspiring to EU membership) as in central and eastern Europe. It certainly cannot be assumed that the other Member States will wish to make a favourable exception for the UK.
At a time when the UK, and Wales especially, desperately need to retain the confidence of investors to promote economic growth and employment, the loss of substantial EIB funding and leverage would be a serious blow to the UK Government and of course to Wales . This could have a damaging implications for example on the water industry in Wales, the developing lagoon projects, some of our hospital developments, as well as to key projects required to further the ambitions of the Swansea and Cardiff city regions as important hubs of development.
Jobs, Solidarity and Cohesion
Let me conclude with what is our number one preoccupation: jobs now and jobs for the future.
We still have too many ‘black spots’ in Wales with deep-seated structural unemployment and unacceptably high levels of persisting poverty hitting families, children especially in both our urban and rural communities. In Wales we have the second highest rate of child poverty after London in the UK, 40% of them in workless households. The most recent reports on our situation here in Wales are even more depressing. The noxious cocktail of joblessness, multiple deprivation and social exclusion is breeding insecurity and disaffection. This problem needs to be attacked at the very heart of the Welsh Government political agenda and we will need all the ingenuity and smart initiatives possible to do so especially if we have to replace EU policy funding from which we benefit.
Over the past 15 years the EU’s Structural policies and funds (the ERDF and ESF) have helped to build some of the new infrastructures we in Wales need. They have provided support for numerous job creation schemes and for community development, helped many thousands of people into jobs with financial assistance for their retraining and career development, boosted the numbers of apprenticeships, and improved our transport and other infrastructures in Wales. ‘Jobs Growth Wales’ would certainly be much poorer without this substantial European contribution.
These Structural Funds are based on the EU’s cohesion policy. The principle of economic and social cohesion – social solidarity in simple language – is firmly anchored in the EU Treaty. President Jacques Delors conceived it as the necessary counterweight to the internal market to ensure that disadvantaged regions throughout the EU would benefit from the economic fruits generated by the biggest trading bloc in the world. We have seen as a result growing support from the EU to the development of active regional policies through the European Regional Development Fund (ERDF) particularly, and most recently EU backing to the development of regions committing themselves to smart specialisation, so critically important to Wales to boost our capacity to innovate and compete.
My key point this afternoon is to stress that in its negotiation with the UK Government, it is not enough for the Welsh Government to argue, as it must and has done, for a rock-bottom guarantee that the same level of funding be provided by the UK government for the future as has been provided through the EU. What is equally needed is for the Welsh Government to make the case for the UK as a whole to commit itself to this very same principle of social solidarity (social and economic cohesion) so that all parts of the UK will be treated fairly on the basis of their different needs, giving a clear demonstration of the political will to pull together in the common interest. A UK-wide strategic commitment to such a policy would chime well with some of Theresa May’s rhetoric and could pave the way for the long term funding framework which Wales and indeed other regions desperately need.
London is the UK’s undiscovered country and it is time we recognised it as the UK’s fifth constituent part by granting it the devolved political powers it deserves. As Tim Oliver argues, London’s size, unique population, economy, politics, identity, society, place in the UK, Europe and the world all add up to make it stand apart from any other part of the Union. A devolved government for London would more than any other constitutional change help to rebalance the UK towards a federal union. It would give the metropolis the freedom to develop as it needs and be a big step towards reforming an unsustainable and unhealthily centralised UK and English state.
Devolution has ‘knock-on’ implications for many aspects of the UK constitution. The United Kingdom may still be classified as a unitary state, but the relationship of the devolved institutions of Scotland, Wales and (when operating) Northern Ireland with the Whitehall/Westminster nexus will gradually acquire many quasi-federal features. Federalism has a particular concern with the vertical relationship between different tiers of government. However, it also offers important insights into horizontal relations between institutions sharing legal, constitutional and political authority, with close interaction between these vertical and horizontal aspects of governance.
The various potential and actual spheres of reform – House of Lords, election systems, devolution, appellate and judicial review system – are closely inter-related. The Federal Trust will be producing a number of papers looking in turn at these issues and seeking to show how federal thinking and federal ideas can make a positive contribution towards the reform of our constitution.