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Beyond Yes and No: Britain after Brexit

14 November 16

The Brexit vote presents an opportunity to rethink the governance of the UK in a way that offers new responsibilities for the devolved nations, and potentially a lasting settlement for Scotland

by Jim Gallagher

The narrow result of the European referendum has shown divisions in the UK: across the political parties, social classes, and the different nations in the union. Referendums carry that risk, especially when opinion is evenly divided on an emotive and existential issue. Arguably it is better for governments to seek compromises to which most of the population assent, rather than leave half triumphant, and half despondent. It is not clear that the UK Government will do that in relation to Europe (for example, by remaining in the single market) but, paradoxically, leaving the EU opens up opportunities for quite radical changes to the UK’s territorial constitution, perhaps leading to something that most Scots can assent to.

Brexit and the territorial constitution

Scottish and Northern Irish voters both rejected leaving the EU by quite substantial majorities, and the argument for compromise is all the stronger where devolved institutions exist and can represent those differing views. Ministers on both sides would be wise to accommodate rather than override differences.

Three key things could lead to a constructive accommodation:

  • Substantial new freedoms are coming to the devolved administrations once EU law no longer applies, notably to justice and home affairs, agriculture, fisheries and environment.
  • Devolution is intended to reflect different interests and priorities, retaining central control only if necessary. For devolved matters, there is no reason to forbid the devolved administrations having relations with the European institutions. Indeed, they should be given new powers to do so.
  • Increased devolved powers and responsibilities will change the nature of the intergovernmental relationships within the UK. The devolved administrations already exercise very real powers, but mostly over areas in which the UK Government does not have to compromise with them to achieve its objectives. That will inevitably now change, and should change more.

These changes, on top of the major changes already being made, will add up to a radical redistribution of governmental and legislative powers inside the United Kingdom, with new freedoms for the self-ruling parts of the UK and so new mechanisms to support shared rule. They are a de facto rewriting of its territorial constitution.

The implications of repatriation

Once EU law no longer applies, all the UK's Governments will have greater freedoms. Westminster will regain the sovereignty previously shared with the EU, but devolved powers will no longer be constrained by European law either. Today, for example, agriculture, fisheries, and environmental protection are uniform across the UK because they are controlled by Europe. Following the pattern of the devolution settlements, Edinburgh, Belfast and Cardiff will exercise these powers.

UK ministers will probably resist the temptation to take on the mantle of Brussels and impose new controls. Not only would it be politically unwise; it would be unconstitutional. There has been loose talk about whether the Scottish Parliament might be able to veto the UK leaving the EU. Clearly not, but it is entitled to a say over any changes to its powers, and subjecting devolved matters to new controls from Westminster would require Holyrood’s consent.

So the devolved bodies will in reality have substantial new powers, but on subjects which need intergovernmental cooperation (that is why they are today managed from Europe). And in contrast with most present intergovernmental relations, agreements will have to be reached for things to work. The UK Government will remain the most powerful player, but it will have less of a whip hand than today, because these will no longer be issues of international relations.

A new European power

One further extension of devolved powers could transform the landscape of UK politics. Today international relations are a reserved matter, dealt with by the UK. But there is scope to alter that in relation to the EU and give the devolved administrations power to enter into international agreements with the EU in relation to devolved matters. Health, for example, is devolved so Edinburgh could enter into reciprocal health agreements, as the UK does today. Many similar possibilities arise: for universities, Erasmus studentships, and access to EU research funding; in justice, cooperation on policing, such as the European arrest warrant or the enforcement of judgments. Devolution accommodates different preferences or circumstances, and should accommodate differences on the European dimension of devolved matters.

As with other devolved powers, the boundary with the UK Government’s proper role needs to be managed, perhaps through something like the Sewel convention, so that the exercise of devolved powers does not undermine the UK’s powers. Agreements on, say, agriculture might have to be subject to the UK’s more general trade responsibilities. Some might object that the EU would refuse to do business with parts of the UK. Nothing can compel it: but if it is in the interests of its citizens, it might well be prepared to.

Further powers? One important example

The new background suggests other powers which could be better exercised at the devolved level. One example already put forward relates to workers’ rights, some of which are currently dependent on EU law. A linked, but more radical possibility is, ironically enough, created by UK ministers’ likely refusal to allow free movement of labour.

On the face of it, ending free movement of labour would appear to require much more stringent UK border checks than today. This however would create real practical problems, and very serious problems indeed for Northern Ireland. As there is still to be a common travel area with the Republic, there cannot be a hard border for people between North and South. This is neither physically realistic, nor remotely politically acceptable. So, almost inevitably, the UK will have to offer visa-free travel to EU citizens.

As a result, there will have to be what is sometimes described as point control of immigration. In other words, major responsibilities will fall upon employers, or potentially providers of public services or even landlords, to ensure that individuals have the right to work or settle in the UK. This might involve work permits, or perhaps EU citizens would simply get one if offered a job. But in any event, point control is open to geographical variation within the UK in a way in which border control is not.

So the devolved administrations can be empowered to manage EU immigration to their jurisdictions. It will be no more difficult for England to manage immigration as a result, since EU citizens will be able to come there anyway and point controls will operate there too. Scotland in particular has sought a different migration policy for decades (under varying political leadership), recognising that its demographic challenges differ. The ability to manage EU migration would be a valuable tool of economic development and something substantial to talk to EU institutions about, opening up scope for negotiation on other matters.

A different kind of UK?

All this will change the nature of the UK, and require quite a different approach to intergovernmental relations, not merely between the UK Government and the devolved administrations, but between all of them and the Government of Ireland. The devolved administrations will have an international personality and real autonomy over areas on which the UK Government will need to treat with them – fisheries, agriculture, environmental protection, regional economic development and maybe migration.

This presents an opportunity for wholesale review of the current intergovernmental arrangements: not just the joint ministerial committees (which have struggled to find a role), but also the British-Irish Council, which also sometimes casts around for meat to chew on. Perhaps these institutions could even in some way be merged.

There is no reason to deny the same flexibilities to the Welsh Assembly Government. London too took a different line, and has its own political representation. Might London also control movement of labour?

Shared rule as well as self-rule

These changes represent markedly greater self-rule for the devolved nations, but attention must be paid
to shared rule as well. Here again the consequences of Brexit offer opportunities. I have three suggestions:

  • new powers for the UK Government to promote economic and social solidarity;
  • the new, more powerful, intergovernmental bodies that are now needed;
  • a new, pan-UK forum to which these new bodies will account.

First, central government. The UK Government should not arrogate to itself all the powers of the EU, but some repatriated powers only Westminster can exercise. Trade is at the head of the list. But for the first time since 1972 the UK will be free to develop its own, unconstrained, regional economic development policies. Regional variations in prosperity have stubbornly increased over decades. Successive Governments have failed to reverse them. The EU is not to blame for that, but the UK will nevertheless now be able to direct resources to nations and regions which have fallen behind, and spend them in new ways. Only central government can do that. This shows how shared rule allows for social and economic solidarity. This matters hugely for the poorer regions of England, Northern Ireland and Wales (Scotland as a whole of course is the third richest part of the country).

Shared rule needs institutions as well as policies. The present, exiguous, mechanisms of intergovernmental relations will inevitably become real nexuses of political power, where deals are done and choices made. These bodies need to become more substantial, frequent and formal, and properly supported, like the British-Irish Council, with an independent secretariat, which might do more than simply take minutes and issue press releases.

A major defect of intergovernmental processes worldwide is that they are opaque. Governments set out aims for their domestic audiences, negotiate something different, and return home to blame the other players. There is no accountability for collective behaviour, and no place where the way the different governments have (or have not) worked together is scrutinised.

In many federal states the upper chamber of the national legislature plays an integrative function. This can be overplayed: the German Bundesrat’s explicit role for Land governments in federal debates is an outlier. But might the House of Lords play some such role for the UK? The Lords is hard to justify in principle and has been going through stuttering reform since 1911, but it works surprisingly well in practice.

The whole House of Lords could not readily discharge this function, but it would be possible to envisage a different kind of Lords committee, perhaps a Grand Committee, with a different membership and quite specific powers. It might, as in federal countries, be consciously geographic in composition, and with disproportionate representation for the small parts of the UK. It could be drawn from the Lords, without a partisan majority, like the House as a whole, because of crossbench peers. It might overrepresent the devolved nations by a factor of three, say, so that its membership was only 55% representative of England. There is the difficulty that the SNP, although dominant in Scottish politics, refuses to nominate peers. If that continues, the Grand Committee might be supplemented by suitable nominations.

Such a body would need explicit powers: to summon the UK and devolved governments individually and collectively (and any intergovernmental secretariat too), to give an account of their intergovernmental activity. It should debate and come to conclusions about the effectiveness of what governments have been doing. It might also set the agenda. For example, a disappointment of devolution is that it has been anything but a laboratory for policy development. The new committee might be given the power, for example, to commission comparative research and assessment, perhaps making use of the audit functions of the UK and devolved legislatures.

Constitutions and politics

Even today, the UK fits into no tidy constitutional category – despite much loose use of the word, it is not federal. Nor will these changes make it so: in some respects, they go further, into something which might be described as confederalism, a union of nations of quite different sizes with common purposes and shared powers, notably in the spheres of defence, the economy and social welfare, but also unusually distinct self-rule for the smaller nations.

These suggestions may seem theoretical, but they are incremental developments of existing institutions. In the absence of a Philadelphia moment, that is how constitutional change proceeds. But it is fair to ask whether they are practical in the fevered hothouse of Scottish constitutional politics.

Certainly the political challenges are great. The SNP remains dominant in Scottish politics, and might see its aim of independence as attainable, and so be disinclined to compromise. The UK Government may see little advantage in giving separatist politicians yet further powers. But both can draw lessons from the European referendum: it may have answered the question, but has not settled the issue. Nor did the independence referendum of 2014. Both left division and uncertainty behind them.

Maybe compromise and principled accommodation offer a better path than another divisive choice. It is interesting that senior figures on both sides of the political argument have mused aloud about whether there is an alternative approach to endlessly continuing Scottish constitutional debate. Imagination and determination would be demanded of political leaders. But the prize is a big one: an outcome of this sort might represent the kind of arrangement to which a substantial majority of Scotland’s population would assent, settling a generational constitutional challenge, rather than facing yet another referendum. Whether political leaders in Edinburgh and London have the courage to take this route remains to be seen.

Jim Gallagher is a former senior civil servant advising on devolution, and now a visiting professor at the University of Glasgow, an Associate Member of Nuffield College, University of Oxford and a non-solicitor member of the Council of the Law Society of Scotland. This article, which expresses a personal view, is based on a lecture delivered at the University of Glasgow on 10 October 2016. 

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