Episode Transcript
How Brexit has Europeanised the United Kingdom.
The promise of Brexit was to ‘take back control’ and establish the sovereignty and supremacy of the UK Parliament and people. There would be no more rule by European bureaucrats and judges and government would be transparent and accountable. The ironic outcome, however, has been the importation into the United Kingdom of the European model of policy making, albeit without the safeguards built into that system.
The UK has left the European Union but remains itself a union of nations. Under the devolution statutes, the Scottish, Welsh and Northern Ireland legislatures have legislative powers over all matters not expressly reserved to Westminster.
While there were overlaps between reserved and devolved powers these were relatively few and the formal mechanisms for intergovernmental relations and dispute resolution were rarely deployed. The main exception concerned European matters, where the devolved bodies were bound by EU law and regulations. In return, they were given a role in the shaping of EU policies through the Joint Ministerial Committee (Europe) and representation on negotiating teams, although they generally found this to be inadequate.
With Brexit, there was an argument about where competences coming back from the EU would land when they concerned devolved matters. An early effort to take them all back to Westminster (with provision for later gradual ‘release’) was fought off. Instead, an elaborate set of institutions and procedures was put in place. This coincided with a reform of the post-devolution system of intergovernmental relations itself. The result bears an uncanny resemblance to EU structures, with the striking difference that the UK system consistently gives the last word to the centre.
At the summit is the Prime Minister and Heads of Devolved Governments Council, which looks rather like the European Council, dealing with major and strategic issues.
Then there is the Inter-ministerial Standing Committee, bringing together relevant ministers depending on the topic, just like the Council of the EU (formerly Council of Ministers) in its various formations.
Below that are Inter-ministerial Groups supported by officials, which deal with specific issues, reminiscent of the ‘comitology’ system of the EU.
There is a joint secretariat to service the system independent of the various governments. Suggestions that it might also serve to arbitrate in the case of disputes and provide independent analysis were not taken up, so this is not really like anything in the EU.
In order to manage shared and overlapping (formerly EU) competences, Joint Frameworks have been established. These do not have a standard format and are intended to find pragmatic and technical solutions to issues that might otherwise escalate to the political level. There is a strong affinity here with the Community method of depoliticizing issues where possible and working them through in comitology. They have been criticised, however, for not including stakeholders in working out policies. Most frameworks, in fact, have been mechanisms for managing policy divergence at a technical level although some have developed policies, even extending beyond their original remit of repatriated EU competences.
The UK Internal Market Act (UKIMA) serves to replace the EU Internal Market, which previously secured the UK’s own internal market. UKIMA stipulates that goods approved for sale under the regulation of one of the UK nations can be marked in the others and that there should be no discrimination. This looks like the EU provision except that its scope is wider than the European equivalent, with fewer exceptions for public policy considerations. Further exceptions can be made but only by the UK Government and Parliament.
Unlike its European equivalent, the UK internal market provisions make no allowance for subsidiarity and proportionality to restrict the extent of their impingement on devolved governments.
In another echo of European practice, enforcement of UKIMA will be a matter for the courts, responding to business or other bodies making a complaint. As the UK courts do not have the experience of the Court of Justice of the EU (CJEU) in these matters, it will be interesting to see how this works out. CJEU rulings on the extent of market principles have sometimes been very controversial.
Brexit exposed the difference in understandings of the United Kingdom: as a unitary state with some powers ‘lent’ to the nations and regions; or as a union of nations on quasi-federal lines. The new arrangements only further highlight these differences in understandings. Many years ago, Richard Rose pointed to a central paradox of the UK constitution. On the one hand, there is the ‘maze’ of complex functional and territorial institutions, made more complex still with devolution. On the other hand, there is the ‘mace’ in which ultimate authority is still concentrated in Parliament. Extending this idea to Europe, there is a maze but no mace, as power is widely shared.
The European maze works and it has survived against all expectations because there is a complex balance between the European institutions and the Member States. Outside the imaginations of Eurosceptics, there was no plan for a ‘European super-state’. The devolved UK, on the other hand, operates under what has been called the shadow of hierarchy. The UK Government does not always over-rule the devolved bodies but can do so at any time.
Some voices, including the Welsh Government have called for a UK Council of Ministers on European lines and more genuine power sharing. We have, ironically, imported many of the forms of the EU but not the shared powers that underpin the European model.
Professor Michael Keating FRSE is General Secretary of the RSE and Emeritus Professor of Politics at the University of Aberdeen. He is also is a member of the RSE’s Scotland-Europe Initiative.
