Brexit and devolution

The Covid-19 crisis has shone a light on the fact that the UK’s four constituent parts are governed differently. The variations in policy responses, especially as the lockdown is eased, illustrate the authority of each to chart its own course in the policy areas for which they are responsible, writes Prof Nicola McEwen.

By contrast, in Brexit negotiations, the starkly divergent priorities of the four territories have been overshadowed by the UK government’s monopoly of the negotiation process. The devolved governments have struggled to get their voices heard.

There is a constitutional explanation for the contrast. Whereas public health is devolved to Scotland, Wales and Northern Ireland, leaving the UK government to make policy for England alone, external relations are reserved to the Westminster Parliament.

The UK government thus defends its constitutional authority to act on behalf of the whole of the UK.

Yet, from the outset of devolution, it was recognised that external relations had a devolution dimension.

The Memorandum of Understanding and accompanying Concordats that formally underpin relationships between the four administrations gave commitments to involve the devolved administrations ‘as directly and fully as possible in decision making on EU matters’ when these directly or indirectly touched on devolved matters or the devolved territories.

Moreover, the Joint Ministerial Committee (EU Negotiations) – or JMC (EN) – was created in 2016 specifically to give the devolved governments a voice in Brexit negotiations. Its terms of reference committed the four administrations to ‘seek to agree a UK approach’ to EU exit, with ‘oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured’.

Quite clearly, the JMC (EN) has failed to live up to its remit. During exit negotiations, the devolved governments were barely consulted on the UK’s negotiating priorities and had no influence over the UK’s approach.

Despite promises in January of enhanced intergovernmental engagement over future relationship negotiations, the opportunities for influence have been notable for their absence. With no prior sharing of drafts, the devolved governments were given a weekend to comment on the negotiating mandate before it was finalised.

In March, all three devolved administrations issued a joint call for ‘a meaningful, comprehensive and transparent process for the devolved governments to influence the UK’s negotiating position’. This had little impact.

Ministers reported receiving advanced copies of the draft legal texts 24 hours prior to their publication in May, despite ‘calling for many weeks’ for these to be shared. Consequently, they had no opportunity to shape the texts, several of which address areas that fall within devolved competence.

There have been talks. Penny Mordaunt, the Paymaster General, has provided regular updates to devolved governments on the progress of negotiations from the UK government’s perspective.

But, according to the Scottish government’s Constitutional Secretary, Michael Russell, the process ‘isn’t about influencing what is happening still less deciding on crucial issues for which we are responsible. It is merely about hearing what is happening’.

This view was echoed by the Welsh government’s Counsel General, Jeremy Miles, who described the UK government as ‘fundamentally uninterested’ in the views of the devolved governments.

Meanwhile, the plenary format of the Joint Ministerial Committee, that brings together the Prime Minister and First Ministers, has yet to meet since Boris Johnson assumed office.

The UK government and the devolved administrations are poles apart on Brexit. A common UK approach might always have been beyond reach.

But it would nevertheless seem pragmatic and in the spirit of the Memorandum of Understanding to alert the devolved governments to the evolving UK position, and to give them a voice in the negotiation process.

There is precedent. The JMC (Europe) – now disbanded, apparently without consultation with the devolved governments – met routinely throughout the devolution period ahead of meetings of the European Council.

It never provided much oversight, but at least it gave an opportunity to shape the UK’s negotiating stance in policy spheres for which the devolved institutions have responsibility.

It seems appropriate to have inter-ministerial engagement involving all four administrations ahead of negotiating rounds, with sufficient time to create opportunities for the devolved administrations to be consulted upon and feed into the UK’s negotiating position.

They, after all, will have to implement any deal, or deal with the consequences if the UK exits transition without one.

This was originally posted by UK in a Changing Europe. And reproduced by the Centre on Constitutional Change