This article originally appeared on the Centre for Constitutional Change website
The Scottish and Welsh Governments worked together closely during their negotiations with the UK Government over those aspects of the EU (Withdrawal) Bill that related to devolution. Despite ultimately choosing different paths, say Hedydd Phylip and Greg Davies, this spirit of cooperation looks set to continue.
Brexit has made many odd bedfellows. Few, however, have proved as politically and constitutionally significant as the alliance between the union-supporting Welsh Labour Government and the Scottish independence-supporting SNP Government. Over the last two years, the two have worked closely over a range of issues, with relations intensifying since the publication of the EU (Withdrawal) Bill in July 2017. This was facilitated by the regular fora of the Joint Ministerial Council (JMC), the British and Irish Council, and bilateral meetings between the First Ministers and ministers of the two governments.
On April 24, this joint working reached a significant crossroads when the Welsh Government reached agreement with the UK Government on the Bill. Although talks are still ongoing, the Scottish Government is yet to agree and the Scottish Parliament has recently refused legislative consent to the Bill.
Does this mark the end of their joint working, or will it see cooperation evolve into a new phase?
Joint working on the Withdrawal Bill
When the UK Government introduced the Withdrawal Bill and confirmed that it would seek legislative consent from both Holyrood and the Senedd, it furnished the devolved governments with a common cause and purpose. The original version, and in particular the controversial clause 11, provided that powers returning from the EU would fall to London, to be released to the devolved legislatures as and when common UK-wide frameworks were put in place. Both the contents of the Bill, as well as the accompanying need to agree a way forward for the creation, substance and governance of UK-wide frameworks post-Brexit, intensified the need for joint working. Meetings between the Finance Ministers of the Welsh and Scottish Governments as well as the First Ministers themselves in the summer of 2017 led to joint statements and, later, joint amendments to the Bill itself.
The two governments remained steadfast in their opposition to the UK Government’s plans even as the latter made a new offer in March this year. They sent written proposals for consideration in the House of Lords, and in an unprecedented showing of joint intent, tabled continuity legislation in their respective legislatures to protect their powers from the effects of the Withdrawal Bill.
However, in April the united front came to an end. A new version of the offending clause 11 was published alongside an inter-governmental agreement (IGA) and Memorandum of Understanding between the UK and Welsh Governments and the House of Lords approved the changes. The legal text ensured that devolved powers would be frozen only in certain areas, with Westminster only asked to approve such a freeze following consideration by the devolved legislatures. The IGA contains assurances that this would not ‘normally’ happen without the consent of the devolved legislatures and that the UK Government would in practice also freeze those powers for England until common frameworks were in place. The Scottish Government could not agree to the terms and the Scottish Parliament has since refused its legislative consent to the Bill.
Where does this leave Welsh-Scottish relations going forward?
It is highly unlikely that joint working between these governments is over, for a number of reasons. First, the two continue to share what the Welsh First Minister, Carwyn Jones, once described as a ‘broadly social democratic / communitarian’ approach to questions of economic and social policy, in contrast to the ‘market-based approaches’ of the UK Government in England. As their first joint statement to the UK Government made clear back in 2015, the two are particularly united in their opposition to the fiscal policies of the Conservative Government and to its long-term aim of repealing the Human Rights Act 1998.
Second, the two governments have the very fact of devolution in common. As Nicola Sturgeon put it in 2014, with their ties to Westminster under the devolution statutes and their joint funding arrangements, there are ongoing issues of common concern for the governments of Scotland and Wales. Moreover, there is a deep scepticism of the UK’s constitutional status quo at the heart of both governments, if for very different reasons. For Nicola Sturgeon, this rests on the conviction that Scotland should be an independent country, free of the ‘writ of Westminster’. Carwyn Jones, on the other hand, has long expressed frustration with the archaism of Westminster parliamentary sovereignty, and has repeatedly called for a constitutional convention on the future of the UK’s governmental structures. Fundamentally, however, both share a view that the popular legitimacy enshrined in the devolution settlements calls for stronger representation of their governments in UK-level decisions affecting Welsh and Scottish interests.
Third, intense collaboration on the Withdrawal Bill has forged strong personal relationships between the ministers involved in the negotiations, in particular Mike Russell and Mark Drakeford.
A new phase
Combined, these factors will be crucial as all parties look to the future and the Brexit-related battles yet to be fought. Negotiations in the JMC will move to substantive work on both the legislative and non-legislative UK-wide frameworks. The UK Government will likely seek maximum control and flexibility, as it did with the original draft of the Withdrawal Bill. At the same time, the principles agreed in the JMC in October 2017 provide that these frameworks will give the devolved nations at least as much flexibility for divergence as they have under current EU-frameworks. In short, there remains much scope for conflict between the UK and devolved governments, and with it further opportunities for joint working.
The governments may have parted ways over the Withdrawal Bill but they will undoubtedly seek to co-influence outcomes once the storm has passed. Their experience of working together over the Bill, securing concessions from the UK Government, has provided a new foundation to their relationship, which they are likely to build on going forward.