Tag Archives: Devolution

Johnson’s Deal Crosses May’s One Legitimate Red Line: Dividing the United Kingdom

by Ira Straus
Chair, Center for War-Peace Studies

21st October 2019

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 in both.

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 value.

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 less troubling.

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 again.

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 from Brexit.

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.

The Two Unions: Brexit and the Territorial State

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

27th April 2020

Introduction

The Brexit 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 overall implications.

Wales

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 outcome.

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 EU.

To state 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.

Moreover, 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

In 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.

The 2014 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.

A key 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.

However, 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 Brexit.

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.

The 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 Scottish polity.

Northern Ireland

The Brexit 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.

The 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.

The DUP 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.

England

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

The general 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.

Faced with 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.

Ultimately, 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.

Conclusion

Brexit has 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.

The 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.

To consider 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.

From a 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.

Will Brexit Destroy the United Kingdom?

STEPHEN HASELER MEMORIAL LECTURE:

Will Brexit destroy the United Kingdom?

4th October 2018

Joint event by the Federal Trust and Global Policy Institute

The lecture was delivered by Brendan Donnelly, Director, The Federal Trust

CLICK HERE TO READ THE STEPHEN HASELER MEMORIAL LECTURE 2018

DOWNLOAD THE LECTURE (pdf file)

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.

 

Devolution, federalism and the UK Constitution

Devolution, federalism and the United Kingdom Constitution: Lessons and implications of the Brexit process

by Dr Andrew Blick
June 2018

About the author
Dr Andrew Blick is a Senior Lecturer in Politics and Contemporary History, King’s College London; and Senior Research Fellow at the Federal Trust

 

Download the paper in pdf format here.

 

 

Video commentary by the author, Dr Andrew Blick

Introduction
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

 

 

 

Devolution in England: International Perspectives, Politics and Policy Ideas

Devolution in England: International Perspectives, Politics and Policy Ideas

 

19-21 June 2017

University of Kent, Canterbury, UK

 

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.

Speakers:

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

Invited discussant: Yeshim Harris (Engi Conflict Management); Nicholas Whyte (APCO, Brussels)

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)

 

 

 

What will Brexit mean for Wales?

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.

 

 

 

 

 

The UK needs a devolved government for London

tim oliver

by Dr Tim Oliver, Dahrendorf Fellow on Europe-North America Relations, LSE Ideas

 

This article was first published by Democratic Audit UK.

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.

Continue reading The UK needs a devolved government for London

The Changing UK Constitution

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.

Papers and Conferences

Do we need a written Constitution?
Speech by Dr Andrew Blick at the joint Federal Trust/ Federal Union event “Never-Ending Brexit?” held on 8th October 2019

The Two Unions: Brexit and the Territorial State
by Dr Andrew Blick, February 2019

Federalism: The UK’s Future?
by Dr Andrew Blick, April 2016

English Votes for English Laws: A Federal perspective
by Dr Andrew Blick
21st July 2015

The United Kingdom: Federalism or bust?
A collection of essays from the Federal Trust
June 2015
Review in the Irish Times, by Paul Gillespie
The Queen’s Speech and the programme of the Conservative Government: a federal perspective
by Dr Andrew Blick
29th May 2015
Federalism, what Federalism?
by Brendan Donnelly
6th January 2015

A Federal Way Forward
by Stanley Henig, extract from his book “Modernising British Government”, 2006

Conference: The United Kingdom: All Change after the Scottish Referendum?
21 October 2014

Conference: Scotland Decides – United Kingdom in Pieces?
16 July 2014

Conference: Devolution in England – A New Approach
10 June 2014 (Launch of the pamphlet with the same title)

Briefing: The Coalition and the Constitution after the Referendum
by Dr Andrew Blick, July 2011

Conference: Constitutional Reform – The End of the Road?
14 July 2011, with Prof Robert Hazell, Director of the Constitution Unit

Conference: The Alternative Vote Electoral System
14 April 2011

Conference: Coalition and Constitution: A laboratory of change?
13 January 2011
Conference Report

Evidence submission to the House of Commons Political and Constitutional Reform Committee, September 2010

Response to the Ministry of Justice Green Paper (Cm 7577) Rights and Responsibilities: developing our constitutional framework, May 2009

Evidence Submission to the House of Lords Select Committee on the Barnett Formula, March 2009

Evidence Submission to the House of Lords Select Constitution Committee inquiry into Referendums in the UK’s Constitutional Experience, January 2009

Commentary on the Government White Paper “Strong and Prosperous Communities”
by Stanley Henig, November 2006

Reforming the House of Lords – a federal perspective
by Stanley Henig, April 2005