Devolution: a key feature of the constitutional architecture

28 September 2018 - by Erin Delaney

A report published by the Public Administration and Constitutional Affairs Committee asserts that devolution is a significant feature of the UK’s constitutional architecture.

Yet, in just 182 days, the constitutional arrangements of the UK are set to change. 

Needless to say, the progress of the European Union Withdrawal Bill (or perceived lack thereof) has proven to be a cause of considerable disagreement between the UK Government and the devolved institutions.

The Bill was passed at Westminster without the consent of the Scottish parliament, a move made possible by sidestepping the Sewel Convention. This was followed swiftly by SNP MP Ian Blackford’s denouncement of the move in the House of Commons, which he branded as “downgrading devolution”.

Questions were subsequently raised regarding the Convention’s apparent ambiguity – while it is entrenched in legislation there also exists no parliamentary procedures to recognise it.

The Sewel Convention states that the UK parliament will ‘not normally’ legislate without the relevant devolved institution having passed a legislative consent motion.

The report compiled by the aforementioned Commons committee floats some idealistic suggestions based on these events.

It recommends the implementation of a “…a clear statement of circumstances under which legislative consent is not required by the Sewel Convention…” in an attempt to close its current open channels of interpretation.

Whilst this idea aims to close an interpretive loophole, the UK’s exit from the EU is sure to create more.

Given that the devolved institutions were created in the context of EU membership after 1972, the new constitutional arrangements of the UK will be a pilot scheme, leaving the position of the devolved nations within the UK open to interpretation.  The report further highlights that the ‘EU context’ of the UK has functioned as a constitutional camouflage, concealing questions, concerns and ambiguities, particularly those in and of the devolved nations.

Following Brexit, the lack of functioning intergovernmental relations mechanisms between London and the devolved administrations will be unsustainable, the Committee says. No longer adhering to that EU context, the UK should seize the opportunity to create an effective inter-governmental process, complete with statutory footing.

The report also calls for a ‘Devolution Policy for the Union’ to be set out at the beginning of each parliament, outlining justifications for asymmetry within the devolved settlements and holding accountable any representational and institutional asymmetries with the UK’s political structures.

Although the report does not explicitly outline what these recommendations would look like in practice, it provides the bare bones of a UK outside of the EU, placing the power held by the devolved institutions, as well as inter-governmental relations, at the heart of its constitution.

The SNP is intent on a deal with the EU which mimics that currently enjoyed by Norway, in which membership of the single market is front and centre.

The Welsh government, meanwhile, wishes to seek a more sustainable devolution settlement post Brexit, whereby Wales “should not be any worse off … as a consequence of leaving the EU.

Moreover, Cardiff and Edinburgh are working together “to convince the UK government that if the UK is leaving the EU, they need to get the best deal possible.

The lack of a functioning Stormont means that the Northern Ireland Assembly remains quiet on an official Brexit position, with the exception of August 2016's joint letter.

As we now enter the final stretch, the transfer of power from Brussels is a critical time for the UK as a whole, but for devolution in particular.

Civic engagement and discussion are still taking place in Northern Ireland. Stratagem will be monitoring developments.

If you want to know more about how we can do this on your behalf, please feel free to get in touch with the Head of Consultancy, Gráinne Walsh.