Countdown to Brexit: 95 days – t’was the day before Xmas- perhaps the last time in a ‘United’ Kingdom?

The House of Lords requested a briefing paper ahead of their debate due to be held 17 January 2019: “that this House takes note of the possible effects of Brexit on the stability of the Union between the parts of the United Kingdom".  The motion was moved by a cross-bencher, Lord Lisvane.

Concerns were raised about the stability of the union of the United Kingdom since the 2014 Scottish independence referendum – and have increased since the 2016 referendum on UK’s continued membership of the EU.

As the UK leaves the EU in March 2019, there are many unanswered questions about the constitutional future of relations between the UK’s devolved nations and Westminster.  These include: how powers that currently reside at EU level will be exercised domestically after Brexit; and what mechanisms will need to be put in place for inter-governmental communication and cooperation in the future?

Even if the ‘deal’ is accepted by Parliament on 14 January, there will be unequal treatment for Northern Ireland if the ‘backstop’ provisions in the UK-EU Withdrawal Agreement come into play.  Northern Irish unionists have argued that this alone threatens Northern Ireland’s place in the union of nations that is the UK.  

The Scottish Government has expressed dissatisfaction that the UK Government has not provided for Scotland to maintain a close relationship with the EU’s single market and customs union after Brexit - despite the backstop arrangements in place for Northern Ireland.  Different arrangements for Northern Ireland could fuel support for a further vote on Scottish independence.

Mechanisms proposed to address issues in the UK’s constitutional arrangements include holding a ‘constitutional convention’ to help build a consensus on a way forward leading to a new Act of Union that could stabilise the framework in which the UK’s constituent parts could share sovereignty.

The Lords briefing provides background information on the Union, before briefly examining issues that have arisen in debates on unionism since the 2016 EU referendum.  It then provides an overview of recent proposals to stabilise the union - including a private member’s bill introduced by Lord Lisvane in October 2018 - that is currently awaiting second reading.  The briefing concludes with a selection of recommended further reading on the complex and multi-faceted issue of the future of the union in the context of the UK’s forthcoming withdrawal from the EU.

Reference: Extracts from “Leaving the European Union: Stability of the United Kingdom’s Union”

  1. Introduction

In June 2016 the UK as a whole voted to leave the European Union.  However, this UK-wide result masked differences between the UK’s four constituent nations: a majority of voters in England and Wales elected to leave but a majority in Scotland and Northern Ireland voted to remain.  In addition to the political implications of these differences, the UK’s decision to leave the EU has raised significant constitutional questions about the future of relations between the UK’s devolved nations and the Westminster.

2. Background

2.1 Nature of the Union

Five elements “combine to allow the nations of the union to work together as a single state…and ending or substantially weakening the union in any of these respects would cause grave damage to the union as a whole”.

  • an economic union, comprising a single market, currency and fiscal and macroeconomic framework;

  • a social union, in which resources are pooled and shared according to need;

  • a political union, in which each part of the union is represented in the UK Parliament;

  • a cultural union, represented in the connections between people across the UK and in a common language and institutions; and

  • a security and defence union, represented by the British Armed Forces—the Army, the Royal Navy and the Royal Air Force—and the UK security services, in addition to a single borders and immigration policy.

2.2 Referendum on EU Membership

The winning margin for leave across the UK as a whole was 1,269,501 votes.  However, this top-level result masked differences between the UK’s constituent parts:

  • in England, 15,188,406 voted to leave (53.4%), against 13,266,996 who voted to remain (46.6%);

  • in Scotland, 1,018,322 voted to leave (38.0%), against 1,661,191 who voted to remain (62.0%);

  • in Wales, 854,572 voted to leave (52.5%), against 772,347 who voted to remain (47.5%); and

  • in Northern Ireland, 349,442 voted to leave (44.2%), against 440,707 who voted to remain (55.8%).

3. Issues Arising from Brexit

3.1 European Union (Withdrawal) Act 2018 and Repatriation of Powers

The European Union (Withdrawal) Act 2018 contains provision for the creation of regulation-making powers for both the UK Government and devolved administrations to make ‘corrections’ to EU law “retained” after Brexit.

Both the Scottish and Welsh governments expressed opposition to the bill’s provisions on devolution.

The European Union (Withdrawal) Act marks the first time that the UK Parliament had legislated on an issue relating to Scottish devolved competence without the consent of the Scottish Parliament.

3.2 Intergovernmental Relations

The UK’s decision to leave the European Union has also raised related issues concerning how the UK Government takes account of the views of devolved administrations in its formulation of a post-Brexit trade policy and in other policy areas.

The House of Commons Public Administration and Constitutional Affairs Committee concluded that the “present lack of intergovernmental institutions for the underpinning of trusting relationships and consent will no longer be sustainable” once the UK has left the EU.

3.3 Devolution and the ‘English Question’

The House of Commons Public Administration and Constitutional Affairs Committee has argued that, in the context of Brexit, “England’s place in the constitution needs urgently to be addressed” - as UK Government ministers “conflate the interests of England and the UK or overlooking the interests of England in favour of those of the UK”.

 3.4 Withdrawal Agreement and the Northern Ireland Backstop

The Withdrawal Agreement reached between the UK and EU on 25 November 2018 contains a protocol on Ireland/Northern Ireland that includes a ‘backstop’ solution to prevent a hard border on the island of Ireland and/or down the Irish Sea.

In Northern Ireland, the Democratic Unionist Party (DUP) and Ulster Unionist Party have rejected the backstop, arguing that separate arrangements for Northern Ireland threaten its place in the UK’s union.

The Scottish Government has expressed dissatisfaction that a close relationship for Scotland with the EU’s single market and customs union was not included in the withdrawal agreement, while this arrangement was being put forward for Northern Ireland.

4. Proposals for Stabilising the Union

the Government has stated that: “Strengthening and sustaining the union is a priority for this Government […] Our constitutional arrangements provide the different nations of the United Kingdom with the space to pursue different policies in devolved areas should they choose to, while protecting and preserving the benefits of being part of the union”.

However, it is necessary “to examine current arrangements holistically, and a new Act of Union to recast the UK uncodified constitution in the context of devolution”.

4.1 Constitutional Convention

Since the 2014 referendum on Scottish independence, a number of political parties and commentators have supported calls for a constitutional convention to consider constitutional issues as they have been enacted on a ‘piecemeal’ basis - rather than as part of a comprehensive or fully coherent plan of constitutional reform.

4.2 New Act of Union

The Act of Union Bill has been developed by the Constitution Reform Group because, in its view, the “union of Northern Ireland, Wales, Scotland and England no longer seems secure.”

Part 1 of the bill sets out nine proposed ‘principal purposes’ of the United Kingdom. These are as follows:

  • The rule of law and equality before the law.

  • The protection of fundamental rights and freedoms.

  • Defence of the realm and the conduct of foreign relations.

  • The promotion of tolerance and respect.

  • Equality of opportunity.

  • Provision of a safe and secure society.

  • Provision of a strong economy.

  • Protection of social and economic rights, including provision of access to education and health and other social services (including the National Health Service).

  • Benefiting from shared history and culture.

For a full copy of the briefing and impact assessment on contingency planning for business please contact us in the first instance.

John ShuttleworthComment