Category Archives: Westminster

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.

Second, there are the direct impacts of Brexit on public services.  While the form Brexit will take remains quite unclear (even in February 2018), it is clear these will be substantial.  In particular, UK economic growth is likely to be weaker, reducing tax revenues for spending on services and increasing costs in some areas.  Social care and the NHS are heavily dependent on staff from overseas and particularly within the EU.  Limiting migration is a key part of the Brexit proposal, and so it may be harder for the UK to recruit from other EU countries, and people from abroad may be more reluctant to work in the UK even if they can, as it has become more hostile to foreigners.  In such circumstances, public services will become more and more stretched.

Third, there is the impact on the UK’s territorial politics.  While the UK as a whole voted to leave the EU, neither Scotland nor Northern Ireland did.  (The Remain vote was 62 per cent in Scotland and 56 per cent in Northern Ireland.)  So far, attempts by the SNP to exploit the difference in the vote to bolster the case for independence or trigger another independence referendum have come to nothing, but that may change.  Such a difference certainly creates the basis for pushing for independence if Brexit works out badly.  In Northern Ireland, the concern of the Republic of Ireland’s government to protect the Good Friday Agreement and avoid a ‘hard border’ have been supported by other EU member states and both UK and the EU-27 have agreed they should form part of the parameters for Brexit, but how that will be translated into practice remains unclear.  Since July 2017, the reliance of the UK’s minority Conservative government on support in the UK Parliament from the only Northern Ireland party committed to leaving the EU (the hardline unionist Democratic Unionist Party) makes this more acute.

In the past twenty years, the UK has embarked on extensive devolution, with profound effects on public services.  It now faces leaving the EU with consequences that cannot be calculated or even roughly estimated, for large areas of public services and for the state as a whole.  Its tolerance of anomalies, public policies that are frequently altered against a backdrop that can only be explained historically, and large territorial variations has led to a backlash from voters, whose vote to leave the EU reflected much wider discontents.

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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

The Draft Wales Bill: analysing the specific reservations

As part of work on the Constitution Unit/Wales Governance project on the Draft Wales Bill leading to the report Challenge and Opportunity: The Draft Wales Bill 2015, I analysed all the specific reservations proposed in the new Schedule 7A in the draft bill.  The point of this analysis was to establish two points.  First, whether the reservations corresponded to reservations or exceptions for Scotland or Northern Ireland – some do, but many do not.  Second, in the absence of any explanation for the reservations in the Explanatory Notes to the draft bill, what the policy rationale for them might reasonably be – whether they related to other functions being reserved, for example.  This repeated an exercise I undertook for the earlier report on the general principles underpinning the ‘reserved powers’ approach.  This analysis underpins the discussion of reservations and their appropriateness in chapter 7 of Challenge and Opportunity.

The resulting table is long and complicated, and including it in the published report would have added hugely to the printing costs but not greatly to its argument or intellectual weight.  Nonetheless, we thought it should be available to those interested.  It runs to some 74 pages, and can be downloaded HERE as a PDF file.

Regarding use of the table, each numbered reservation in Schedule 7A has its own box.  Not all comments do – some apply to several reservations on the same overall matter.  There are some formatting gremlins that affect lay-out (for which apologies), but not clarity or legibility.  The table includes all exceptions from reservations, but in some cases lengthy interpretation clauses have been edited.

 

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Not meeting the challenge: The failings of the Draft Wales bill

This blog post first appeared on the LSE’s British Politics and Policy blog, here. It also appears on the Constitution Unit’s blog, Constitution-unit.com, here, on the Edinburgh Centre for Constitutional Change’s blog, here and on ClickonWales, the blog of the Institute for Welsh Affairs, here.

I have forborne from commenting in any detail on the Draft Wales Bill before now, other than in giving evidence to the Commons Welsh Affairs Committee, because of my involvement in the joint Constitution Unit/Wales Governance Centre project. The report was published on Monday 1 February, and can be downloaded here as a PDF.

When the Draft Wales Bill was published in October 2015, it was described by Stephen Crabb, the Secretary of State for Wales as delivering on the UK Government’s commitment ‘to create a stronger, clearer and fairer devolution settlement for Wales’. This is badly needed; the history of Welsh devolution since 1998 has been one of short-term solutions that have needed to be revised or replaced within a few years. Hopes were high that the present round of constitutional debate – triggered by the appointment of the Commission on Devolution in Wales chaired by Sir Paul Silk in 2011 – would mark a departure from that established pattern.
Sadly, a close analysis of the Draft Bill shows those hopes to have foundered. A joint project hosted by the Constitution Unit at UCL and the Wales Governance Centre at Cardiff University has been looking at the Draft Bill in detail, and publishes its report Challenge and Opportunity: The Draft Wales Bill 2015 today. Our group has been chaired by Alan Cogbill, former Director of the Wales Office in Whitehall, and had Professor Rick Rawlings from UCL as rapporteur. Other members have included Sir Paul Silk and Sir Stephen Laws (formerly First Parliamentary Counsel), academic and practising lawyers from Cardiff, as well as myself. This work follows an earlier joint CU/WGC report published in September 2015, entitled Delivering A Reserved Powers Model of Devolution for Wales (available here as a PDF, and summarised HERE.) Our examination of the Draft Bill has found it to be flawed in many respects.
The first flaw is a conceptual one. The draft bill’s key commitment is to deliver a ‘reserved powers’ approach to Welsh devolution, like that used for Scotland (and with modifications for Northern Ireland). At the same time, it tries to avoid making wider changes to how Welsh devolution works while delivering that. The assumption that the ‘reserved powers’ approach can simply be grafted onto the existing division of law-making powers between Westminster and Cardiff Bay is wrong. The ‘reserved powers’ model necessitates a sequence of other changes, which were already in place for Scotland in 1998, and which need to be considered for Wales.
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Launch of report on the Draft Wales Bill

With a number of colleagues from the Constitution Unit and the Wales Governance Centre, I have been working for some time on a major examination of the Draft Wales Bill published in October. This follows our earlier report written over the summer on issues of a ‘reserved powers’ model more generally. We’ve now finished our work and are shortly going to launch our new report, which is entitled Challenge and Opportunity: The Draft Wales Bill 2015. There will be two events – one in Cardiff at lunchtime on Monday 1 February, and one in Westminster late in the afternoon of Tuesday 2 February. Both events are free to attend but registration is necessary.

The Cardiff event starts at 12.30 pm in the Main Hall of the Pierhead. Speakers will be Professor Rick Rawlings from UCL, who drafted the report, Alan Cogbill who chaired the group, and Emyr Lewis of Blake Morgan, another member of the group. Fuller details and registration (through Eventbrite) are here.

The London event will be at 5 pm and takes place in the Wilson Room in Portcullis House, on the Parliamentary Estate Committee Room 6 in the Palace of Westminster. Speakers will include Rick Rawlings, Richard Wyn Jones and myself.  Please allow plenty of time to get through Parliamentary security. Email wgc@cardiff.ac.uk to register your attendance.

UPDATE, 2 February: The report Challenge and Opportunity: The Draft Wales Bill 2015 can now be downloaded from here as a PDF.

 

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The Enterprise bill: public sector pay-outs and devolution

Having made its way through the Lords, the Enterprise bill will get its Commons second reading next Tuesday. In many ways, this bill exemplifies bad post-devolution legislation, as it’s a portmanteau bill with provisions on a range of subjects including a Small Business Commissioner, non-domestic rates, late payment of insurances claims, regulatory reform and other matters. Some of these provisions relate only to England, some of them mainly affect England but have knock-on effects for devolved functions in various parts of the UK, some of the bill’s provisions are UK-wide or GB-wide and relate to reserved/non-devolved matters – but others are intended to apply across the UK or Great Britain while affecting devolved matters. To make matters worse, it extensively amends existing legislation, so working out exactly what it does is no easy task.

One clause that is particularly striking is clause 35, which deals with ‘public sector exit payments’ – redundancy and similar payments made to people leaving public sector employment. It covers not only redundancy and ex gratia payments but also contractual obligations such as pay in lieu of notice or for outstanding leave entitlements, and limits the sum total of such payments to £95,000. The bill delivers a Conservative manifesto promise to ‘end taxpayer-funded six-figure payoffs for the best paid public sector workers’.  These have been particularly notable in recent times with the shake-out of the public sector arising from austerity and also major reorganisations of services, which have often led to individuals taking a pay-off from one job and then moving straight into another.  Another side of the coin, for very senior posts, is how to remove a senior figure like a chief executive who cannot work with a changed political leadership, a common problem in local government. An amicable redundancy settlement has usually been the way to resolve that. (As an aside, putting the figure of £95,000 onto the face of the bill is unusual and likely to cause serious practical difficulties in future, as inflation erodes the value of that amount.)

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Legislative consent in Wales

The Sewel convention has rightly come to be seen as key to the working of devolution in the United Kingdom. It may have first been envisaged as a way of enabling Westminster to continue to legislate for devolved matters and maintaining something like the practical pre-devolution status quo in policy-making, when convenient and politically acceptable, but it was quickly understood to mean more than that.

One reason may be that devolved legislative powers are more far-reaching than was at first appreciated. More important, though, is the emergence of the ‘constitutional’ dimension of the convention. The wording used in the Memorandum of Understanding (first agreed in 1999 and not changed since then) may refer to ‘the UK Parliament … not normally legislat[ing] with regard to devolved matters except with the agreement of the devolved legislatures’, but Devolution Guidance Note 10 on Post Devolution Primary Legislation regarding Scotland has been clear that consent is also required where there are changes to the functions of the Scottish Executive/Government or Parliament.  This means that functions cannot be removed from the devolved tier of government without its consent.  It also means functions cannot be added without consent, meaning that the UK tier cannot get rid of inconvenient functions, or transfer them without adequate funding, if a devolved legislature objects.

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