Category Archives: EU issues

Brexit and UK ‘mega-constitutional’ politics

A few days ago I posted a thread on twitter about the way the UK Government has botched its approach to Brexit, seen in the light of intergovernmental relations. It has been widely read there, and I’m posting it here (with a few textual edits) in case readers of this blog are interested but haven’t seen it.  Those who wish can find the first tweet here, or an ‘unroll’ of the thread here (though this may disappear).  

1/ As some readers may know, I did a lot of academic work on comparative intergovernmental relations, including how federal systems deal with ‘mega-constitutional’ issues like top-level constitutional reform. Brexit is a mega-mega constitutional reform.  (The term ‘mega-constitutional politics is originally Peter Russell’s: see his Constitutional Odyssey: Can Canadians Become a Sovereign People?, Third Edition, University of Toronto Press, 2004.)

2/ Any mega-constitutional reform only happens effectively if it can be accepted as legitimate, by those unhappy with the outcome as well as those happy about it. That means the process by which it is reached is crucial. This is ‘loser’s consent’.

3/ Each side needs to know what it’s seeking and have broad support for its goals. It has to say what it means, and mean what it says. Clarity and consistency are key to getting a good outcome.

4/ More than any others, these are the negotiations where the aim has to be an outcome that works for everyone, not one where you ‘win’ over the other side. If you try to do that, you’ll lose.

5/ This is a game you have to play ‘straight’ if you’re not going to lose it, even if you don’t win.

6/ The EU side has played this game ‘straight’; broad support for its positions on its side, consistency in dealing with UK in the negotiations. Brexiteers keep thinking EU will change its position but it hasn’t.

7/ The UK Government’s approach to Brexit has been the exact opposite of this. UK hasn’t even talked to itself. We’ve witnessed the Conservatives talking to themselves (and the DUP). No domestic consensus at all – or even interest in it.

8/ Instead, we’ve witnessed endless amounts of gaming for small-scale objectives, mainly aimed to keep the Conservative Party together (doomed to fail in any event). The Prime Minister has preferred to play games over negotiating positions and supposed strength in those.

9/ So the last 2½ years have been watching a slow-motion car-crash, doomed to lead to an almighty mess, no matter what form Brexit takes or doesn’t take . At this point, any Brexit outcome will be illegitimate in the eyes of many in UK.

10/ All that is quite separate from the likely seriously damaging economic effects of any Brexit, particularly a crash-out no-deal Brexit, as illustrated by one independent member of the Bank of England’s Monetary Polkicy Committee.

11/ Not only is there no clear majority for any particular outcome in Parliament, there’s no clear majority for any option to resolve the problem either (a second referendum, Parliament taking over, etc), whether there or among the public at large.

12/ So this is now a first-order constitutional crisis domestically, quite apart from the Northern Ireland (and Scottish) territorial dimensions.

13/ What to do about this? There’s absolutely no way to do this before 29 March. The first step has to be a long delay before UK leaves the EU, to work out how it’s going to do so. So extend Article 50, if EU-27 will agree.

14/ There then has to be a major, open, deliberative process to answer this. That should have happened sooner. Otherwise everyone will hugely angry, and no-one happy. If it doesn’t happen now, the consequences are fearful.

15/ And the Prime Minister who created this mess can’t be the one to lead the way out of it.




Filed under EU issues, Referendums

Brexit, the welfare state and redistribution

My final academic publication is a contribution to a book coming out in June 2019 edited by Scott Greer and Heather Elliott, at the University of Michigan School of Public Health.  Federalism and Social Policy: Patterns of Redistribution in 11 Democracies is an attempt to explore how welfare states actually work in federal and decentralised states, what sorts of redistribution they do and how effectively, and whether and how much there are different welfare regimes at sub-state or regional level.  This comes from the chapter about the UK, which looks at how devolution is financed, and the working of policies relating to under-19 education, health services and pensions.  It should be a significant contribution to the academic literatures about both comparative federalism and comparative welfare states.  Details of the book can be found here

What appears below is an extract from the conclusion, about the impact of Brexit on the welfare state.  There has been much speculation about the sort of country that a post-Brexit UK may be, and some discussion, mostly short-term and very pragmatic, about the impact of Brexit on social policy, such as labour market problems affecting the NHS or social care.  It seems to me, though, that the divisions of the Brexit vote and its likely economic effects will have a grave effect on the future of a redistributive welfare state – generally, not just in territorial terms (though it has territorial dimensions too).  Due to space constraints and the fact this was a comparative project, not particularly concerned with Brexit or the UK, it’s rather brief and under-developed, but nonetheless is worth wider and earlier circulation than the published book permits.  This section was drafted early in 2018, but nothing that has happened since changes what I wrote then – indeed, the only change is that I would now probably put it more forcefully. 

Far more important are the effects of the UK’s vote to leave the European Union in June 2016, with departure to take effect in March 2019.  The significance of the Brexit vote can hardly be understated and is likely to reshape the UK in the years to come.  Its significance has three dimensions.

First, there is the deep social cleavage that the vote to leave the EU revealed, and which has deepened since the vote.  At least in England and Wales (which both voted by majorities to leave), ‘Leave’ voters were generally older (age 49 or older), less well-off and from less well-off parts of the UK, particularly smaller towns that were badly affected by de-industrialisation.  ‘Remain’ voters were younger, better off and lived mainly in larger cities.  (60 per cent of voters in London voted Remain; only slightly smaller a percentage in the West Midlands voted Leave.)   To a substantial degree, this was a vote by the losers from globalisation against the relative winners.  Since those ‘winners’ are also the most economically productive members of British society, who generate the income that is redistributed to those ‘losers’ in the form of public services and welfare benefits for which their taxes cannot pay, there has to be a question in the longer term of why they should continue to do so.  This goes to the heart of the social basis for redistribution through public services and taxation.  Add to this the difficulties younger people face, with very high housing costs, large levels of graduate debt, and limited occupational opportunities compared to their parents’ or grandparents’ generations in an economy that is growing more slowly than in the past.  If, as many expect, leaving the EU adversely affects the British economy for some time to come, these difficulties will be further compounded.  Younger people, faced with increasing difficulties, are likely to be more and more unwilling to see their stretched incomes taxed to pay for those who have made them worse not better off.

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Filed under Devolution finance, English questions, EU issues, Publications and projects, Referendums, Westminster, Whitehall

Brexit, Article 50 and devolved legislative consent

This post is about whether Brexit requires legislative consent from the devolved legislatures, particularly the Scottish Parliament, and what that consent relates to – whether the whole process of Brexit, or only aspects of it.  It argues that the English and Welsh High Court’s judgment in the Miller case ([2016] EWHC 2768 (Admin)) on the use of prerogative powers alters the position significantly, and that the implication of that judgment is that the consent of at least the Scottish Parliament is needed for the triggering of Article 50.  Whether that will be the case depends, of course, on what the UK Supreme Court has to say when it comes to give its ruling on the issue early next year.

Apologies if this seems like a long and technical discussion of legislative consent.  But while there has been much discussion about the need for legislative consent – mainly, Scottish assertions that Holyrood’s consent is essential and can therefore be used to block the UK’s departure from the EU, contradicted by various UK politicians including Theresa May, David Davis and Jeremy Wright – there hasn’t been much analysis in terms of the rules that govern the Sewel convention.  (There’s a detailed discussion of that HERE.)  As a result there is a great deal of confusion about what does and does not require legislative consent.  In fact, the rules are quite simple.

  • Legislation which affects devolved functions requires consent – by convention for Northern Ireland and Wales (until the current Wales bill comes into effect), and by statute for Scotland.  (One might call this the ‘policy arm’ of the convention.)
  • Changes which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers also require legislative consent, by convention.  That applies whether the change removes functions from the devolved legislature or executive, or confers new functions on either of them.  (This can be called the ‘constitutional arm’ of the convention.)
  • As a convention, it is not justiciable before the courts – but the statutory arm of it is.  Otherwise, the UK Parliament remains sovereign, something explicitly stated in all the principal devolution Acts.
  • In any event the convention contains an exception so that in some circumstances it may not be binding – the convention only applies ‘normally’ – though no-one can have a clear idea what that exception really means.

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Filed under EU issues, Intergovernmental relations, Legislation, Northern Ireland, Scotland, Wales, Westminster

Devolved elections and the timing of the EU referendum

All three devolved first ministers have now written to the Prime Minister seeking to ensure that the referendum on the UK’s EU membership is not held in June. The current thinking suggests that 23 June may be in David Cameron’s mind, assuming all goes well in reaching a final agreement with the other member states in the renegotiation. The First Ministers’ concern is proximity to devolved elections, and they are right to be concerned; the surprise is that their concern is not shared by Conservatives, or Labour, at Westminster.

The timetable for the EU referendum is not clear, but there are two fixed dates running up to the process. The first is the deadline for publication by the UK Government of

a report which contains … information about rights, and obligations, that arise … as a result of the United Kingdom’s membership of the European Union, and … examples of countries that do not have membership of the European Union but do have other arrangements with the European Union (describing, in the case of each country given as an example, those arrangements).

This is required by section 7 of the European Union Referendum Act 2015, and must take place not less than 10 weeks before the referendum date.

The second is the formal referendum campaign period, during which the two designated In and Out campaigns will have referendum election broadcasts, rights to public funding, and be required to keep detailed accounts. All that is complicated and requires effort and engagement from those involved in campaigning (and can easily be got wrong).  It also means engaging the public with issues about the UK’s future relationship with Europe rather than parties’ plans for taxation, housing policy or the health service.  That period starts 10 weeks before referendum polling day.

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Filed under Conservatives, Elections, EU issues, Northern Ireland, Referendums, Scotland, Wales

Scotland and Europe: A tale of two referendums

 This article appears in the latest issue of the British Politics Review, published by Norway’s British Politics Society, in a special issue on Euroscepticism in the UK.  

BPR 3-13You wait for ages, and then suddenly two come along at once.  What’s true of London buses also applies to constitutional referendums in the UK.  Despite its apparent enthusiasm, the Labour UK government in office between 1997 and 2010 made only limited use of the referendum – in Scotland and Wales for devolution in 1997, in the North East of England for regional government in 2004, and in various localities for having elected mayors.  Since 2010, there has been a mad flurry of referendum activity.  The first was in Wales in March 2011, which approved increased law-making powers for the National Assembly for Wales by nearly two to one.  That was followed by one on the Alternative Vote (AV) system for UK Parliamentary elections in May 2011, rejected by more than two to one.  Two more are looming – that on Scottish independence in September 2014, and another about the European Union proposed by Conservatives and under consideration in Parliament for 2017.  There are some odd parallels between the two, and some important interactions between them too.

The Welsh powers and AV referendums were both slightly awkward exercises in constitutional deliberation.  The Welsh referendum was legislated for by Labour, in the Government of Wales Act 2006, which created two systems for defining the law-making powers of the National Assembly.  The differences between them were real and significant, but not easy to explain to the general public – one was a system of conferring legislative power on the Assembly incrementally, the other a grant of wide legislative powers affecting the same 20 subject areas.  The real reason for holding the referendum was the impact of the Westminster Coalition, and the poll was held at the first practicable date.  While advocates of a Yes vote include politicians from all parties, the biggest problem was the lack of an official No campaign – and with that, the lack of access to referendum broadcasts on radio and TV.

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Filed under EU issues, Publications and projects, Referendums, Scotland, Scottish independence

‘Comment is Free’ piece on an independent Scotland’s membership of the EU

I was asked by the Guardian’s Scotland correspondent, Severin Carrell, to write something about José Manuel Barroso’s remarks about ‘seceding’ states becoming members of the European Union, which suggested that the EU would not automatically accept Scotland as an EU member as a ‘successor state’ to the current United Kingdom.  A statement by the Commission President is clearly not determinative of what might hypothetically happen in a few years’ time, let alone what view other EU institutions might take – membership issues will fall ultimately to the European Council to decide.   However, Barroso’s statement raises the stakes, raising legal issues (as the ‘state succession’ issue is only part of the legal argument about Scottish EU membership, the other part arising from EU citizenship), as well as political ones.  In it, I try to explain the two lines of legal argument, how Barroso’s statement is unhelpful to the SNP’s referendum strategy, and how it seems to reflect a rather narrow view by the Commission of what the EU is about that would seem to be at variance with other activities of the Commission.

The piece has appeared on the Guardian’s ‘Comment is Free’ site, and can be found HERE.  To judge from the volume of comments, it has excited a good deal of interest.


Filed under EU issues, Publications and projects, Scottish independence, SNP

Christmas and pre-Christmas reading

The approach of the end-of-year break has brought with it a flurry of interesting essays and interviews. I’d particularly draw attention to the following:

  • David Marquand argued in a column in Monday’s Guardian that England’s hostility toward the EU and support for it in Scotland and Wales create a risk of break-up of the UK.  I’ve taken this view for many years, though I think Marquand over-states the short-term likelihood of this.  That piece is here.  Timothy Garton Ash follows in similar vein in today’s issue, here.
  • Jim Sillars was interviewed in the Scotsman on Tuesday.  Sillars, still very influential among SNP members and other Scottish nationalists, expresses a good deal of scepticism about the impact of the European Union on an independent Scotland, particularly over currency and the Euro.  He supports the idea of a separate Scottish currency, underpinned Continue reading

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Filed under Civil service, EU issues, Plaid Cymru, Scotland, SNP, Wales

Scottish independence, EU membership, legal advice and negotiations

There’s news that the UK Government has obtained legal advice is that an independent Scotland would not automatically be a member of the EU, but would need to apply for membership.  See The Firm’s report here, and the Telegraph here.  This follows an earlier row in the summer about the (non-) disclosure of the Scottish Government’s advice on the issue.  That the UK has sought advice, or that that is the advice it has received, is not a surprise.  The issue has been debated for a long time (I remember an iteration of it in 1993).  The issue is not whether an independent Scotland would satisfy the EU’s criteria for membership, but whether it could become a member on the first day of independence.  That the UK Government takes the view it doesn’t is important for two reasons.

First, it indicates a major problem for the SNP’s political strategy to secure independence.  The ease of the transition to an independent state depends heavily on the extent to which UK is willing to co-operate with the process.  That co-operation might, in principle, include helping Scotland to secure EU membership.  The harder line from Whitehall is not surprising, and suggests that the UK Government is not prepared to acquiesce in smoothing the SNP’s path.  Continue reading


Filed under Courts and legal issues, EU issues, Referendums, Scotland, SNP

The first JMC with the new UK Government

Yesterday’s plenary meeting of the Joint Ministerial Committee appears to have gone well. One person involved described it privately as ‘intergovernmental in character’, making it quite a change from previous plenary meetings. The Scottish Government’s news release, including the text of the official communique, is here, and it’s also available from the Welsh Assembly Government here.   (Neither the Northern Ireland Executive nor the UK Government have yet put it on their websites, and indeed looking  at the various UK Government sites you’d never know a JMC meeting had taken place at all.)

There are news reports from the Scotsman here, the Western Mail here, BBC News here, and a discussion by Brian Taylor on his blog here.

Although the headline on several stories and news releases relates to progress on the ‘respect agenda’, the meeting clearly looked at a wide range of other issues.  The key points from it are:

  • a work programme for further meetings for the coming year, and publication of an annual report on the previous year’s work of the JMC.
  • ‘full involvement’ of the devolved administrations in work on the UK Comprehensive spending Review, which appears to be done through the Finance Ministers’ Quadrilateral meetings.
  • referral of the dispute about the regeneration funding  for the 2012 Olympics to the formal dispute resolution procedure, agreed in March.
  • greater willingness for the UK Government to allow the devolved administrations to attend and speak at EU Council of Ministers’ meetings.

The plenary JMC was followed by a meeting of the JMC Europe, though this hasn’t been publicly announced and no communique has so far been issued.  (That’s no surprise – it’s standard practice for such meetings.)  That may explain the large delegation from the Scottish Government for the plenary JMC meeting, with Alex Salmond, John Swinney and Fiona Hyslop all attending.


Filed under Devolution finance, EU issues, Intergovernmental relations, Northern Ireland, Scotland, Wales, Whitehall

Devolution inside the new UK Government

A bit more detail has emerged about how the new UK coalition is meant to work – but only a bit.  First, there is a new ‘Coalition Agreement for Stability and Reform’ which deals with process issues – which I noted earlier as a significant omission from the Programme for Government.  That’s available here.  However, this is still pretty skimpy on detail, particularly for dispute resolution if that should arise.  The emphasis rather is on avoiding disputes, so there are clear provisions about involvement of both parties in machinery of government issues.  These include provisions that:

  • no Lib Dem minister will be removed without consultation with the Deputy PM;
  • the PM and Deputy PM will have full access to papers from the Cabinet Secretariat; and that
  • each Cabinet committee or sub-committee will be chaired by one party and have a deputy chairman from the other, either of whom can refer an area of disagreement to a ‘coalition committee’ for resolution.

But that is about the limit of the dispute resolution mechanism.  Time will tell if it is adequate.

This emphasis on dispute avoidance is no surprise in itself; its importance was emphasised, for example, at a seminar on Friday about coalition government at the Institute for Government, drawing on experiences from Scotland, Wales, the Netherlands and the Republic of Ireland.

Second, the list of the Cabinet committees has been published (available here).  There is an important omission, though; the full list of Cabinet sub-committees is missing, as it has not yet been finalised.  However, there are many fewer full committees than there were under Labour.  The Brown government had 11 full committees and 21 sub-committees.  The new Continue reading


Filed under Conservatives, EU issues, Intergovernmental relations, Lib Dems, Northern Ireland, Scotland, Wales, Whitehall