Analysis: a year where devolution lost its way

Scotland does not need a referendum to endure a constitutional and identity crisis, it turns out.

In fact, the last parliamentary year has been so fraught with tensions between governments that it has been necessary to create a new cabinet role within  the Scottish Government – Cabinet Secretary for Government Business and Constitutional Relations, with Michael Russell in post from June.

While Russell, in his role as Brexit minister, has failed to reach an agreement this year with an in-fighting UK Government hurtling towards Brexit, he has certainly racked up the air miles.

The one thing everyone can probably agree on is that it has not been a good year for intergovernmental relations. 

It is a year when the devolution settlement set up 20 years ago was stretched to the limit.

In particular, the Sewel Convention, which states that the UK Parliament would “not normally” legislate on matters within the devolved competence of the Scottish, Welsh or Northern Irish administrations.

Ultimately the convention was broken, especially in the case of Northern Ireland, where the assembly failed to convene and civil servants took control, but the UK Government can legitimately claim these are not normal times.

Sewel is not the only convention, after all, being ripped up by the process of Britain leaving the European Union.

Numerous Joint Ministerial Committee (JMC) meetings over the UK Government’s Withdrawal Bill ended in stalemate as the repatriation of powers from Brussels took centre stage.

The Scottish and Welsh governments branded the initial proposals a “power grab” because they ensured Westminster retained control over some areas normally devolved to the nations, such as agriculture.

Russell said he had been asked to “sign away the Parliament’s powers” without knowing what post-Brexit UK-wide regulatory frameworks looked like. 

In April, the Welsh Government agreed to accept a compromise that the additional powers would only be reserved for a period of seven years, but the Scottish Government dug their heels in.

Russell told MSPs: “We cannot support any proposal that would enable the powers of the Scottish Parliament to be constrained.

“The UK Government has no mandate to undermine the powers of this parliament.”

The Conservatives suggested Russell had been willing to accept the proposal until First Minister Nicola Sturgeon intervened to veto the deal.

The party’s constitution spokesman Adam Tomkins said: “The Welsh Government has signed up to this deal. Yet Nicola Sturgeon, alone, refuses because she prefers to pick a fight with the rest of the UK in order to keep her obsession with a second independence referendum alive.”

However, in truth, the devolution concerns had not just come from the SNP.

The Scottish Parliament refused consent for the EU Withdrawal Bill, and in an unprecedented step, the UK Government decided to ignore that.

Furthermore, in March, MSPs had passed emergency legislation to give Holyrood the ability to circumvent the UK’s EU Withdrawal Bill and protect devolved areas. 

Despite a warning from Presiding Officer Ken Macintosh that the ‘Continuity Bill’ may not be within Holyrood’s legal competency, Scottish Labour and all Liberal Democrat MSPs bar one backed it. 

As part of a marathon two-day meeting, MSPs on the Finance and Constitution Committee had endured a five-hour night shift considering hundreds of amendments to the bill.

The UK Government issued a legal challenge as soon as it was passed, and the bill is now in the Supreme Court. 

Ahead of the hearing, Scottish Secretary David Mundell said: “Given the view of the Scottish Parliament’s Presiding Officer that the Continuity Bill was not within the legal scope of the Parliament, we believe it is important to ask the Supreme Court to provide absolute clarity. 

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“The legislation which set up the Scottish Parliament anticipated such a situation, and we are simply following the legal process set out in the 1998 Scotland Act.”

The case pitches the Advocate General for Scotland, Lord Keen, against Scotland’s Lord Advocate James Wolffe.

Even if it was anticipated in the 1998 Scotland Act, having senior judges rule on a political standoff is not perhaps where anyone wanted to be.

The minutiae of powers repatriated from Brussels is only a small chapter in the UK’s constitutional journey, however, as the ramifications of Brexit ripple out.

The negotiations between UK ministers and EU officials have relied on a position adopted by whatever faction of the Conservative Party is dominating the UK cabinet in any given week. 

Northern Ireland remains a sticking point. Theresa May’s Chequers white paper, which resulted in the resignations of hard-Brexiteers David Davis and Boris Johnson, appeared to solve the issue by offering a customs union and regulatory alignment to prevent a hard border being erected with the republic to the south. But neither hard-Brexit Tories nor the EU accept the proposal. 

Meanwhile, with the Northern Ireland Assembly suspended and under direct Westminster control and the DUP holding the balance of power in the Commons, the future of Northern Ireland and the Good Friday Agreement – which guaranteed an open border as a crucial part of maintaining peace – is unclear.

Political instability in that Remain-voting part of the UK has the potential to carry a far more damaging cost than the fallings out at the JMC.

Brexit will have a knock-on effect on the UK constitution as a whole, according to Westminster’s Constitutional Affairs Select Committee.

Its report in July said current devolution arrangements across the UK are “not fit for purpose” and that a new intergovernmental relationship mechanism should be “set out in statute”.

The fact the devolved governments had enjoyed “little consultation” on the EU Withdrawal Bill had been “highly regrettable”, it said. 

The report was also damning of the way the civil service at Whitehall had handled the process.

“We heard evidence that Whitehall has a tendency to hold on to power and that there is a continued institutional lack of understanding of devolution,” it said.

“In individual departments, there have been some attempts to inform officials, but the structure and culture of Whitehall generally still takes little account of the realities of devolution in the UK.”

It also suggested the roles of Scottish and Welsh secretaries may not be needed.

The cross-party group of MPs were also united in saying things would need to change, pointing out that the Sewel Convention is far too ambiguous for purpose.

“Leaving the EU will change the UK’s constitutional arrangements, so it needs a rethink,” said the committee’s Conservative chair Sir Bernard Jenkin.

“We recommend the government sets out a clear devolution policy for the union as we leave the EU. Failure to do this just prolongs misunderstandings which are the basis for more conflict.

“The present machinery for developing intergovernmental relations is flimsy, and there is nothing to give the various parts of England a say. Ignoring this risks the future relations within the UK.”

Whether it is relationships with Europe or within the UK, the order of the day is to rip it up and start again.