Chaotic no deal Brexit threatens the future of the United Kingdom 

Jeremy Miles calls for urgent reform of intergovernmental relations in the UK

I spoke at a Wales Governance Centre event in Cardiff Bay a few days ago, and my message was stark: the way the nations of the UK work together will need to change if the union is to survive.
After three wasted years, we’re looking at a straight choice between a no deal Brexit or remaining in the EU – and we are unequivocal in backing remain. We’re calling on Parliament to legislate for a second referendum, with remain on the ballot paper.
The intergovernmental structures have been creaking for a while, to put it mildly, and changes in the way that the governments of the UK work together are long overdue.
It’s now been two years since the Welsh Government published Brexit and Devolution, our vision for the future of devolution, intergovernmental relations and the UK constitution.
In it, we called for a UK Council of Ministers, and for better dispute resolution which should include a system for independent arbitration. We recommended an independent secretariat, perhaps based on the one that already exists for the British Irish Council. And we called for a UK constitutional convention, to look at the ways that the UK’s constitution needs to change.
We were the first (and so far only) administration to set out a vision for the future governance of the UK – though I look forward with interest to the publication in the near future of the Scottish Government’s vision for UK relations.
When we published Brexit and Devolution, we didn’t claim to have all the answers. We said: here are the issues we’re facing as a result of Brexit. These are the reasons why the existing systems won’t cut it anymore. And here are our proposals for change.
It’s been useful as it’s given us a route map to focus on as we set out on this arduous constitutional journey, but two years on, what’s changed? The short answer is not enough. The destination we described is still a distant spot on the horizon.
Some parts of Whitehall are starting to ‘get it’. The problem is that understanding is patchy. Even where relations are positive and constructive, they’re too reliant on personal interaction between individuals, whether at Ministerial or official level – and obviously people move in and out of roles.
There seems to be a real risk that we could face a new Cabinet which is even less sympathetic to the legitimate concerns of the devolved administrations. The prospect of departure from the EU is creating real tension for our constitution and the relationships between governments.
Constitutional relations should be based on the rock of fair and robust agreements on decision making and dispute resolution, rather than the sands of benign relationships. We need to see a step change from the UK Government.
Under-40s in Wales probably find it hard to imagine life without devolution. Today, we live in a world which has delivered two decades of tangible benefits to the people of Wales, Scotland and Northern Ireland.
In many ways, though, the UK Government’s approach to devolution is still based on a very outdated ‘grace and favour’ attitude. If we behave ourselves, they’ll let us have some limited powers of self-government, out of the goodness of their hearts – a ‘get what you’re given’ type of devolution.
There’s no change yet to the existing, inadequate intergovernmental arrangements, and there’s still no agreed plan for how they might be reformed. In that sense, nothing’s changed. No progress has been made regarding our call for a Council of Ministers, or for a better system for dispute resolution – and that’s deeply disappointing.
Discussions between officials have of course been underway, and relations are positive – just not hugely productive. There have been aspects of progress, but it is just not good enough that we don’t yet have a better structure for intergovernmental working and decision making.
I acknowledge that it isn’t an easy process: the constitutional aims of the governments involved are very different. If we’re to see real progress, though, we need a renewed and strengthened commitment from UK Ministers to a review. We need an understanding and acceptance that compromise will be needed on all sides – and a willingness to compromise. And we need officials to feel properly empowered to engage in the detailed discussions needed.
More fundamentally, we need a change in attitude towards devolution, based on mutual respect and parity of esteem between the various governments. If that happens, we have a chance of delivering positive change.
This needs an understanding that the concept of the supremacy of Parliament is no longer fit for purpose. Devolution tells us that in Wales, the sources of authority extend way beyond Parliament. And Brexit has illustrated that rather dramatically, right across the UK. If we insist on clinging to the constitutional comfort blanket of Parliamentary supremacy, we’ll fail in the task of reimagining a 21st century British constitutional settlement.
In my view, a disorderly, chaotic exit from the EU would threaten the future of the United Kingdom. But even if by some chance we do leave on 31st October with a deal, that’s actually when the fundamental tension within our constitution and the relationships between governments will really start to take their toll.
Resolving that tension will become more and more urgent as we move from negotiating the terms of our departure, to negotiating our future relationship with the EU and the wider world.
The basic problem can be described very simply: entering into legally binding international agreements is reserved, but the implementation of those international agreements is often devolved. It’s absolutely vital that the devolved administrations are fully involved in negotiating our future international relationships.
In our view, the UK Government should not normally proceed with a UK negotiating position which impacts on devolved competence, unless it’s been agreed with the devolved administrations. We accept that there are matters on which UK Government will set the UK line, but we can’t accept any attempt by UK Government to backtrack on international relations reservation as a catch-all way of ‘keeping the devolved administrations in their box’.
These discussions and decisions will be felt directly in the lives of individuals. People in Wales have voted for decisions on important aspects of their lives, and the UK Government needs to understand that the best way to keep the union strong, and working better, is to respect, support and even enhance devolution.
The Welsh Government has led the debate to address the pressures that Brexit has brought to bear on our devolved constitution. We’ll continue to take action to safeguard the interests of Wales and its people. And we’ll work to develop a set of intergovernmental structures that can meet the breadth and scale of the challenges which lie before us today – and which are probably only a taste of those we’ll face in the years ahead.
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Jeremy Miles AM is Counsel General and Brexit Minister

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