Brexit poses profound challenges for relations between the UK and devolved governments. But, can the lack of understanding and trust that characterised intergovernmental relations in the months before the election give way to more positive relationships?
The Brexit referendum outcome prompted an unprecedented intensification of intergovernmental relations between the UK and devolved governments. The decision last October to set up a new forum, the Joint Ministerial Committee (European Negotiations), marked a step-change in IGR. It promised more focus, purpose and influence for the devolved governments than is normally associated with the JMC. But the JMC (EN) failed to live up to the expectations of all parties, and its future is in doubt.
Certainly, there were lots of meetings. After 21 months without meeting, the JMC Plenary (which brings together the PM and First Ministers) met twice, while the JMC (EN) met four times between November 2016 and February 2017. Both the UK and Scottish governments also acknowledged an intensification of bilateral meetings between officials and ministers in the two months prior to the General Election. The quantity of meetings brought its own challenges in terms of resources and organisation. But what of the quality?
The lack of transparency in IGR makes it difficult to make an impartial assessment. But the reactions of the governments involved suggest that intergovernmental relations had become a dialogue of the deaf, with UK ministers on the one side and devolved government ministers on the other talking past each other, failing – wilfully or otherwise – to see or respect the others’ viewpoint. The JMC (EN) raised expectations of joint agreement on a UK approach prior to the triggering of Article 50. But there was no intergovernmental discussion of the UK Government’s Brexit position prior to the Prime Minister’s Lancaster House speech, or the publication of the White Paper or the triggering of Article 50.
The JMC (EN) was also supposed to provide the devolved governments with oversight of negotiations with the EU, but formal multilateral IGR may be difficult to resurrect without a functioning Executive in Northern Ireland. Besides, prior to the General Election at least, the UK Government’s appetite for the JMC (EN) had diminished, as had the expectations of the Scottish and Welsh Government regarding its capacity to uphold its remit.
Both the UK Conservatives and the SNP have been humbled by the General Election results, and it is not yet clear how this will affect the relationship between their two governments. The First Minister has called for a rethink on Brexit, and an opening up of the process to include all parties and the devolved governments. While the Scottish Government’s capacity to influence negotiations is likely to remain limited, its central objective of retaining membership of the Single Market may be back on the table amid broader pressures for a rethink.
The Scottish Tory leader, Ruth Davidson, buoyant from her electoral success, seems intent on trying to influence the UK’s Brexit stance, though quite how remains unclear. The UK Government may take try to bypass the Scottish Government to bring Ruth Davidson – the principal opposition leader in the Scottish Parliament – into the Brexit fold. Such a controversial step could be seen as disrespecting devolution, and would lead to further significant deterioration of relations between the two governments.
The election results reinforced the authority and confidence of Wales’ First Minister, Carwyn Jones. He has been at the forefront of thinking over how to restore the Union, while mounting a small ‘n’ nationalist defence of devolution. In a post-election paper, the Welsh Government has called for ‘deeper and more sustained cooperation’ between the UK and devolved governments, including more shared governance, co-decision and joint delivery. The paper also calls for an overhaul of the UK’s intergovernmental machinery, replacing the JMC with a Council of Ministers acting as a decision-making body not dissimilar to the EU Council.
This imaginative proposal might find favour with the devolved governments (although the absence of a veto power would be problematic). It is difficult to foresee the UK Government agreeing, however, given the added complexity and reduced authority it would entail. Besides, a structure of shared governance may need to be underpinned by mutual trust, shared purpose and commitment to the Union, but these can’t be taken for granted.
What, then, lies ahead for UK IGR? Brexit and the repatriation of competences necessitates intergovernmental coordination, especially in policy areas like agricultural, fisheries and finance which are most affected. Informal ministerial quadrilaterals outside of the JMC framework have already been established to take these issues forward, and these are likely to continue and may intensify. The devolved governments are keen to re-establish the JMC. The precarious position of the Conservative administration makes it more likely that it will also want to re-engage, at least for consultation, if not co-decision.
As is often the case in UK constitutional practice, the most likely road ahead in IGR is to muddle through. But Brexit, and especially the repatriation of competences, will present hazardous road blocks along the way.