Testing grounds: seats of the devolved administrations in (L-R) Cardiff, Edinburgh and Belfast. Photos: PA
Last month, parliament passed the Withdrawal Agreement Act, despite the fact that the National Assembly for Wales, the Northern Ireland Assembly and the Scottish Parliament all refused to give the bill consent. The situation was unprecedented; never have all three devolved legislatures refused consent to the same piece of legislation.
The Sewel Convention states that the UK parliament will “not normally” legislate on devolved matters without the consent of the devolved legislatures. However, the convention is just that – a convention with no legal force. Parliamentary sovereignty means that parliament can proceed with legislation regardless – and it did so to enable the UK to leave the EU on 31 January.
Ministers and officials must now find a way to repair the breakdown in relationships and trust that has resulted in the current impasse.
Until 2016, the Sewel Convention operated with remarkably little controversy – of the 350 times legislative consent had been sought, it had been denied partly or in full on only nine occasions (seven of which cases were in Wales). This is because disagreements are usually resolved well before it gets to a vote, with UK officials typically engaging with the devolved administrations before legislation is even drafted to iron out potential difficulties at an early stage. If necessary, the threat of withholding consent has allowed the devolved administrations to extract additional concessions.
But this approach requires trust, compromise and good and open communication, all of which have been in increasingly short supply since the 2016 EU referendum. The devolved administrations have accused the UK government of taking major Brexit decisions on a unilateral basis and failing to take into account the majority remain vote in Scotland and Northern Ireland.
Relations between Westminster and Holyrood reached a new low when the UK government proceeded with the EU Withdrawal Act 2018, despite the Scottish Parliament refusing consent. Since then, the Scottish government has been on “Sewel strike”, refusing to consent to any Brexit-related bills other than in exceptional circumstances – claiming the UK government’s decision had “effectively suspended” the convention.
The devolved administrations are now testing the limits of the Sewel Convention by using the consent process to register disagreement with the UK government’s overall Brexit strategy, rather than just its implications for devolution. The UK government has responded by arguing that international negotiations and agreements are matters reserved exclusively for the UK parliament.
Either way, passing major constitutional legislation despite the expressed objections of three of four constituent parts of the UK will only put further strain on the union.
Increasingly fraught relationships at the political level have had implications for intergovernmental working at official level. Sources inside government reported that UK ministers have been increasingly cautious about allowing their departments to share information about Brexit with their devolved counterparts for fear it could be used for political purposes by ministers in Scotland and Wales. This approach has drawn strong criticism from the Scottish and Welsh governments, with both arguing that it had hampered their own ability to prepare effectively for the possibility of a no-deal Brexit in the run up to the October Article 50 deadline.
The UK government may well be tempted to continue its approach of keeping the devolved administrations at arm’s length throughout the second phase of the Brexit talks. But any trade deal will have wide-ranging implications for devolved areas like health and food standards, which the devolved administrations will also be responsible for implementing. The UK parliament will also have to pass legislation on post-Brexit frameworks in areas like agriculture and fisheries, as well as on any future trade deal; all this will require the consent of the devolved legislatures. A failure to involve the devolved administrations and respond to their concerns will inevitably make it harder for the UK and devolved governments to cooperate effectively on implementation.
In the longer term, serious work must be undertaken to repair the relationships between the four parts of the UK. There is an underlying anxiety in the devolved nations that the devolution settlement remains vulnerable to a majority in Westminster, and this anxiety has been heightened by the fallout over the Withdrawal Agreement Act. Brexit has clearly demonstrated that the Sewel Convention is broken. Work to fix it should begin immediately.