Amendments to the controversial Clause 11 of the European Union (Withdrawal) Bill were agreed in the House of Lords yesterday evening, following a deal between the UK and Welsh governments last week. Jack Sheldon and Michael Kenny explain the significance of this agreement for the UK as a whole and outline a number of unresolved issues it raises.
The long-running dispute over powers returning from the EU that fall within the jurisdictions of the devolved legislatures in Scotland, Wales and Northern Ireland is approaching its climax. Following months of often fraught negotiations, last Tuesday the UK and Welsh governments announced – to some surprise – that they had reached an agreement. The same proposal was rejected by the Scottish government, but talks are continuing in the hope that they too can reach a deal.
Any eleventh-hour accommodation between the UK and Scottish governments is unlikely to involve a fundamental change from the approach taken in the UK-Welsh agreement. It is therefore worth reflecting on last week’s deal, which takes the form of amendments to the controversial Clause 11 of the European Union (Withdrawal) Bill and an accompanying memorandum on the process for establishing common frameworks. Although it has not received much attention in the London media, the agreement carries major implications for the way in which the UK takes control back from Brussels over key policy areas including agriculture, the environment and fisheries.
The UK-Welsh agreement
The amendments agreed by the UK and Welsh governments, and agreed in the House of Lords with the support of the Labour frontbench yesterday evening, represent a substantial change from the original, widely criticised, Clause 11. Under the initial draft all matters currently controlled at EU level were to be reserved to Westminster indefinitely while UK-wide frameworks were considered. The new amendments instead propose that where powers are devolved under the Scotland, Wales and Northern Ireland Acts, this will remain the case by default after exit day. Whitehall ministers will, however, gain a new power to use secondary legislation to suspend devolved competence in a specified area for a period of up to five years, in order to rule out the possibility of frameworks being undermined by devolved legislation. This will expire two years after exit day.
The memorandum published alongside the amendments states that the power to suspend devolved competence should ‘normally’ be used only with the consent of the devolved legislatures, replicating the terminology of the Sewel convention applying to primary legislation. It explains that it is envisaged that the power will be used following a ‘collaborative process’. At an initial stage ‘deep dive’ sessions to establish where UK-wide frameworks are required will involve officials across administrations. Further discussions between governments will then take place from June onwards. Once agreements on regulations to be made using the power available under Clause 11 have been reached, the consent of the devolved legislatures will then be sought for each use.
Behind the rather technical procedural issues which this dispute has involved, the potential significance of the proposals within the memorandum should not be underestimated. They mean that, at least as long as the agreement is honoured, the frameworks underpinning the affected policy areas will need to be agreed by each of the UK’s governments before being put before the Westminster parliament.
This development takes intergovernmental relations in the UK into important new – and as yet unchartered – territory. In the past ministers from the devolved governments have been consulted on some matters, notably in formulating UK positions ahead of EU negotiations. There have also been extensive negotiations relating to the powers and financing of the devolved governments. Meanwhile, consent motions have regularly been sought where the UK governments have proposed legislation encroaching on devolved competence. But in almost two decades of devolution it has never previously been the case that major policies covering the whole of the UK have been formulated at intergovernmental level in the way the agreement between the UK and Welsh government envisages. If this happens as planned, it will add a notable element of what academics call ‘shared-rule’ to a devolution system that has up to now been characterised by a high degree of ‘self-rule’.
Using intergovernmental channels for policy-making will unavoidably raise questions about the suitability of existing institutional arrangements for the task. In recent years there have been widespread calls for reform of the Joint Ministerial Committee (JMC) structure, including from committees of the House of Commons, House of Lords, the Scottish Parliament and National Assembly for Wales. The latest plenary meeting of the JMC agreed to an official-led review, with a remit specifically to ensure structures are ‘fit for purpose in light of the UK’s exit from the EU’. A key challenge will be to ensure that structures encourage constructive relationships to be built between governments, and reduce the likelihood of meetings being dominated by political point-scoring as has often been the case in the past.
Formulating policy at intergovernmental level will also inevitably raise questions about accountability. The arrangements proposed can be seen as a transfer of power from legislatures to executives, and there will be fears that it will result in deals being made behind closed doors with little public or parliamentary scrutiny. The UK-Welsh agreement does include a commitment, to be added to the Withdrawal Bill, for UK ministers to ‘report to the UK Parliament on progress on implementing common frameworks’. It is envisaged that these reports will also be copied to the devolved legislatures. There may, however, be a push for legislatures – perhaps working collaboratively – to take on a more active role in overseeing the process of negotiating frameworks.
A third important issue which may potentially arise concerns how England will be represented in this intergovernmental process. The word ‘England’ notably appears only once in the UK-Welsh agreement, in reference to a commitment by the UK government not to bring forward legislation for England where its powers under Clause 11 have been used to suspend devolved competence. The lack of distinct representation for England in intergovernmental forums is nothing new, but might be more problematic than it has hitherto been, given the kinds of negotiations that are proposed. The UK government will be expected to combine the role of arbiter, seeking compromises that can work for the whole of the UK, and that of the principal advocate of English interests. But there is every chance that these could come into conflict, for instance in relation to agriculture. There are no straightforward institutional solutions to this problem, but there is a strong case for the review of JMC structures to consider this issue more fully in the current context.
Amid all the other dramas engulfing British politics at the moment, the dispute over the future of devolved powers has been largely overlooked outside Scotland and Wales. However, the arrangements that have been proposed as a result of it represent a significant constitutional innovation, with implications for the UK as a whole. Making them work effectively will be a challenging undertaking, but there may now be an important opportunity to make a start on rebuilding trust between the UK’s governments following an extended period when it has been notably lacking. Over the coming months we will be continuing to engage with the issues raised in this blog post, examining different ways of organising intergovernmental relations after Brexit as part of the Between Two Unions research project funded by the ESRC.
This article first appeared on the blog for the Centre on Constitutional Change.