Unlock Democracy: A Matter Of Politics, Not Law

Unlock Democracy Part Two: A Matter Of Politics, Not Law

Interesting report out this week by Unlock Democracy detailing the democratic problems that Brexit has unleashed. The report was published under a Creative Commons license so over the course of three blogs I intend to reproduce the parts relevant to the devolved administrations. Regular readers will be familiar with these issues but it is nice to have them from an independent source.

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A Matter Of Politics, Not Law

Many aspects of the relationship between the UK government and devolved legislatures operate on the basis of political conventions, which are politically but not legally binding.

The most important convention is the Sewel Convention, which reserves the UK’s right to legislate on matters relating to devolved competencies. It does, however, also oblige the UK government to seek legislative consent when exercising this right.

This convention was put on a statutory basis in the Scotland Act 2016. Section two of the
act reads:

it is recognised that the Parliament of the United Kingdom will not normally legislate
with regard to devolved matters without the consent of the Scottish Parliament.

In January 2017 the Supreme Court ruled unanimously that the Scottish Parliament did not have a veto on triggering article 50.

Leaving aside the argument of whether the Sewel Convention is applicable to triggering article 50, the court ruled that it was not legally enforceable in any case. It ruled that the text of the Scotland Act was intended to recognise a political convention but not create any legal obligations. Political conventions, they said, are a matter for Parliament not the courts.

Without any legal obligations to seek consent from the devolved legislatures, the extent of their role in the Brexit process is almost completely at the discretion of the Prime Minister. Shortly after the EU referendum Theresa May promised she would not trigger article 50 until she had established a UK-wide approach to negotiations.

Certainly in the opinion of the leaders of the devolved administrations, this was not achieved.

The main vehicle for cooperation between the UK and the devolved nations is the Joint Ministerial Committee (JMC). Established in 2001 by the Memorandum of Understanding on Devolution, the original purpose of the committee was to build consensus in areas like foreign policy and European matters, which are reserved for the UK government but affect Scotland, Wales, and Northern Ireland. Prior to the referendum it existed in three formats; JMC (Europe); JMC (domestic); and JMC (plenary), the latter of which is attended by the Prime Minister and First Ministers.

In October 2016 the JMC (plenary) established a format specifically for Brexit: the Joint Ministerial Committee for European Negotiations (JMC(EN)), the aim of which was to establish a joint approach to Brexit negotiations. The Prime Minister’s enthusiasm for consensus appears to have waned as the Brexit process has progressed.

The majority of the electorate in two of the four nations voted in favour of remaining in the EU and the Welsh, Scottish, and Northern Irish governments all remain committed to single market membership. The Scottish and Welsh governments both published detailed proposals for their post-Brexit visions.

Yet at least in the early stages of Brexit, the Prime Minister has shown no signs of compromising on her government’s position of leaving both the single market and the customs union.

More importantly, she is not required to do so. The JMC has no statutory basis, and the UK government is not bound by its agreements or advice. This is made clear in the Memorandum of Understanding that established it:

The JMC is a consultative body rather than an executive body, and so will reach agreements rather than decisions. It may not bind any of the participating administrations, which will be free to determine their own policies while taking account of JMC discussions.

Key figures in Scotland, Wales, and Northern Ireland have expressed frustration over the Joint Ministerial Committee and its lack of formal power.

Welsh First Minister Carwyn Jones called it a “Westminster creation” and complained that it was not “jointly owned.”

These comments were made even before Brexit. Nicola Sturgeon was “deeply frustrated” by the JMC meeting in January 2017. In her speech calling for a second Scottish independence referendum, she claimed that Scotland’s

efforts at compromise have instead been met with a brick wall of intransigence.

Sinn Féin threatened to pull out of the JMC in January 2017, calling it a “talking shop”. John O’Dowd, a Sinn Féin Member of the Legislative Assembly (MLA) said:

British Prime Minister Theresa May treated the council with utter disdain

after making her big Brexit announcement, including indicating her intention to leave the customs union, days before the JMC was due to meet.

The sidelining of the devolved legislatures has been further cemented by the rejection of amendments to the bill to trigger Article 50 which would have required the government to seek an agreement with all the devolved administrations and put the JMC on a statutory footing.

In February 2017, the Scottish Parliament voted to oppose the triggering of article 50, but without any legal force behind it this resolution is purely symbolic. The current devolution settlement is untenable. Brexit has demonstrated how powerless the devolved legislatures are to influence a Westminster government intent on pursuing its own agenda.