Leaving the EU will change the constitutional arrangements of the UK in relation to the devolution settlements: the devolution settlements were established in the context of EU membership and this masked many key constitutional questions and ambiguities that will now become more pressing. In recognition of the significance of devolution to the UK's constitutional arrangements, PACAC recommends the Government publish a 'Devolution Policy for the Union'.
Devolved administrations' concerns
PACAC finds that it is highly regrettable that there was little consultation with the devolved Governments over the EU (Withdrawal) Bill, as this could have avoided much of the acrimony that was generated. Draft legislation should be shared with devolved governments to identify and work through issues in advance.
While PACAC was pleased that the final form of the EU (Withdrawal) Act 2018 addressed some of the concerns of the devolved administrations, it is important that the Government recognise that the reserved powers model of devolution means that powers are devolved by default and not conferred by the UK Parliament.
PACAC finds that there is considerable ambiguity surrounding the Sewel convention and that the Government chose to interpret the convention in such a way that the legislative consent of the Scottish Parliament was deemed unnecessary. PACAC recommends that clear statements of circumstances under which legislative consent is not required by the convention be set out.
Increasing disconnection in England
At a time when devolution has become an established feature of the UK constitution, PACAC finds that a failure to address the questions of England's place in that constitution and how the different parts of England will be represented risks a sense of increasing disconnection of the English people from the political system. PACAC recommends that the Government set out, as part of its 'Devolution Policy for the Union', a clear statement of how the different parts of England should be fairly and effectively represented; and the Government should consider devolving whole areas of competence and not piece meal powers within England.
PACAC is concerned about the Government's attitude to UK Common Frameworks, which cover areas of devolved competence which therefore require agreement between UK and devolved Governments to achieve alignment of policy. The Government intends that they should be developed and operated on a case by case basis. PACAC calls on the Government to develop and publish a coherent policy for the establishment, operation and monitoring of the UK Common Frameworks.
PACAC argues that the current inter-governmental relationship mechanisms are not fit for purpose and are the missing part of the current devolution settlement. It recommends that a new inter-governmental relationship system be set out in statute and include a separate representation for England.
PACAC also recommends that a new system for inter-parliamentary scrutiny needs to be established to hold the Governments of the UK to account. It invites the Clerks of the four Parliaments and Assemblies to produce a proposal for an inter-parliamentary body to scrutinise UK Common frameworks.
PACAC Chair, Sir Bernard Jenkin, said:
"Leaving the EU will change the UK's constitutional arrangements, so it needs a re-think.
We recommend the Government sets out a clear devolution policy for the Union as we leave the EU. Failure to do this just prolongs misunderstandings which are the basis for more conflict. The present machinery for developing inter-governmental relations is flimsy, and there is nothing to give the various parts of England a say. Ignoring this risks the future relations within the UK.
We set out a path to reconciling differences and building strong relationships across the UK, which recognises that many parts of England have more in common with parts of Scotland, Wales or Northern Ireland than they do with London and the South East."