Uneasy devolution settlements expose our faltering unwritten constitution

As the EU (Withdrawal) Bill continues to work its way through Parliament, a key issue coming to the fore this week is devolution. The bill as drafted undermines the hard-won devolution settlements that have brought stability and peace to the UK’s people. We’re calling on supporters to #StopThePowerGrab of Westminster ministers and support our current devolution settlements. The issues raised by the bill cut to the heart of a precarious and uneasy settlement between Westminster and the devolved nations and regions of the UK. The fundamental question of where power should lie is growing increasingly fraught as the Brexit negotiations move along.

What’s the problem?

The Withdrawal Bill is the first major piece of Brexit legislation to go before Parliament. In it, the government has proposed handing itself sweeping powers in clauses 10 and 11, which would enable ministers in Westminster to rewrite the respective devolution Acts and freeze existing competences. This would mean all power would return to Westminster from the EU - even in areas previously reserved for the devolved administrations.

The devolved administrations that are currently sitting in Edinburgh and Cardiff have reacted to the bill with overwhelmingly negativity. The Welsh and Scottish First Ministers called the bill a “naked power grab”. The Scottish Conservatives have also raised concerns around the bill and openly called for its amendment.

At Unlock Democracy we recognise that there will be a need for some common UK wide frameworks and standards when we leave the EU. But there are better ways of achieving this without undermining the existing devolution settlements. In fact, at some point the government must have thought so as well, as Theresa May initially declared she would not trigger Article 50 until she had established a UK-wide approach to negotiations. However, this joint approach never really materialised.

This issue has been raised by Bernard Jenkin MP, the chair of the Public Administration and Constitutional Affairs Committee, who said upon the recent publication of the Committee’s report on intergovernmental relations in the UK that “the notion that the devolved administrations are treated as an afterthought by Whitehall” cannot go on, and “meaningful” engagement by the UK government is now “vital. This issue has already been raised by Unlock Democracy as early as July 2017 in our Democratic Brexit report, where we called for the Joint Ministerial Committee to be placed on a statutory footing.

Brexit is an enormous challenge that the UK is facing. But it is precisely because of the seismic scale of the challenge that the devolved administrations should have a voice. Westminster ministers want to take control in areas - like agriculture, the environment, and fisheries - that are currently devolved. This undermines hard-won devolution settlements.

It doesn’t help that many MPs seem to have put devolution to the back of their minds, or diminish its importance altogether. During Committee Stage debates on the Withdrawal Bill, for example, Conservative MP David T. C. Davies, who chairs the Welsh Affairs Committee, told the Commons:

it is a power grab, of course it is a power grab, a wonderful power grab it is too. We are grabbing those powers from Brussels and bringing them back to London.

Brexit has demonstrated how voiceless the devolved administrations are to advocate for the rights of their people.

An uneasy constitutional settlement

The current devolution settlements were agreed through referendums, where the people of Scotland, Wales, and Northern Ireland each agreed to a unique reserved powers model.

Brexit has exposed that despite the various devolution Acts setting in law the relationship between Westminster and the devolved nations and regions, nonetheless, devolution remains the gift of Westminster. It will remain the case, until we have a codified constitution that enshrines in law the rights and principles of the devolved settlements.

Brexit is challenging the very foundations of our uncodified constitution, tugging at the seams of piecemeal settlements that have evolved over time. Unlock Democracy believes the only long-term solution to this challenge is to citizen-led codified constitution to solve the challenges posed to devolution in the UK.

If you want to join our campaign for a constitution that is designed by and for all people of the UK then sign up to our mailing list or become a member.