The Territorial Constitution and the 2024 UK General Election – UK Constitutional Law Association
The Liberal Democrat, Conservative and Labour manifestos offer markedly different visions for the future of devolution in Scotland, Wales and Northern Ireland after the 2024 UK General Election . At one extreme, the Liberal Democrats offer fundamental constitutional reform. If elected, they have promised to ‘transfer greater powers away from Westminster and Whitehall’ by ‘[strengthening] the voices of England, Wales, Scotland and Northern Ireland’ as part of a ‘written constitution for a federal United Kingdom’. They would, inter alia, ‘complete’ the further devolution of powers set out in the Smith and Silk Commissions, strengthen mechanisms for intergovernmental working and dispute resolution, and remove the ability of the UK Parliament unilaterally to amend devolved competence or legislate in devolved areas. At the other extreme, the Conservative Party manifesto marks the end of the road for the further devolution of powers or the deeper entrenchment of devolved institutions. The devolved governments, they say, ‘now have the right balance of powers to deliver for the people [of Scotland, Wales and Northern Ireland]’. The Conservative Party’s focus therefore falls on holding the devolved governments responsible for their performance, making devolved governments more accountable within the devolved legislatures, encouraging the decentralisation of power away from Holyrood, Cardiff Bay and Stormont, and strengthening the role, powers and visibility of the UK Government, including in devolved areas.
Positioned between fundamental reform and the end of the road, Labour’s 2024 manifesto, Change, offers to ‘take a different approach’ to that taken by successive Conservative governments and to ‘reset’ the UK Government’s relationships with its devolved counterparts. This deserves to be taken seriously for at least three reasons. First, because it seems highly likely that Labour will form a government after the election. Second, because Labour and the SNP seem to be in co-operative mood, creating at least the opportunity for a meaningful change. Third, and the focus here, because of the substance of Labour’s commitments on devolution.
Towards ‘Change’
There was already the hint of a more co-operative approach to devolution when the Labour Party invited the former Prime Minister, Gordon Brown, to lead a Commission on the UK’s Future. Published in 2022, the Brown Commission’s report, A New Britain: Renewing Our Democracy and Rebuilding Our Economy, talked of a ‘fresh start’ that – by putting ‘the right powers in right places’ – would restore trust in ‘a responsive and accountable government’ and ‘[unlock] the potential for growth and prosperity in every part of the country.
As far as devolution was concerned, the right powers were – it seems – broadly in the right place. In Scotland, the only recommendation for new powers was an amendment to the foreign affairs reservation in the Scotland Act, to enable the Scottish Government to enter into international agreements and to become members of international bodies, in relation to devolved matters. In Wales, within a general recommendation to devolve new powers to the Senedd and Welsh Government was included a specific recommendation to devolve youth justice and the probation service.
The report recommended more extensive reforms on inter-governmental relations (IGR). First, it recommended putting reformed and expanded intergovernmental machinery on a statutory footing. Second, it proposed imposing a new statutory duty of ‘solidarity’ on the UK and devolved governments, along with a legal statement of the purposes of the UK, statutory recognition of the principle of subsidiarity, and a ‘constitutional requirement to rebalance the UK economy’.
Perhaps most significantly, the Brown Commission recommended stronger constitutional protection for devolved autonomy. This was necessary, the report claimed, because recent Conservative governments had ‘disregarded the conventions which govern the exercise of its power [and] interfered with the devolution settlements’. With specific reference to the Sewel Convention – the political rule that the UK Parliament will not normally legislate in devolved areas without the consent of the relevant devolved legislature – the report lamented ‘repeated’ breaches that, by demonstrating devolution’s ‘[vulnerability] to amendment or override’ by the UK Parliament, had ‘[caused] great concern among those who support the United Kingdom’ and ‘[given] succour to nationalists who seek to end it’.
The Commission therefore made a number of related recommendations that – taken together – sought to balance the continuing sovereignty of the UK Parliament with meaningful entrenchment and protection for devolved autonomy. First, that the statutory form given to Sewel by s.27(8) of the Scotland Act 1998 and s.107(6) of the Government of Wales Act 2006 should be amended to clarify that the rule applies both to what Alan Trench has called the ‘policy arm’ of the Convention (UK legislation in devolved areas) and its ‘constitutional arm’ (UK legislation that amends devolved competence). Second, that this amendment should also remove the rule’s ‘not normally’ qualification, making it applicable to all UK legislation in devolved areas, or that amends devolved competence, no matter the circumstances. Third, and most innovatively, that the new statutory rule should be one of several number of constitutional statutes that are protected from override or repeal by a reformed second chamber – an Assembly of the Nations and Regions. Fourth, that the statutory guarantees of the permanence of the Scottish and Welsh governments and legislatures should also be protected from override or repeal by the new Assembly. Finally, that where there is doubt about UK legislation encroaching upon these provisions, the presiding officer should be required to refer the question (most likely) to the Supreme Court for an authoritative judgment.
Stability is ‘Change’
The recommendations made by the Brown Commission have been analysed on this blog and elsewhere. However, it is now clear that – if these recommendations have at all been taken seriously by the Labour Party leadership – they have been significantly watered down in the manifesto. On international relations, for instance, the manifesto commitment is merely that a Labour government will ‘collaborate’ with the Scottish Government on international engagements that relate to devolved matters and will enable the Scottish Government to ‘partner with’ (but not to join) international bodies ‘where relevant and appropriate’. In Wales, the manifesto commits only to ‘work with the Welsh Labour Government to consider [our emphasis] devolution of youth justice’. This has already caused some consternation in Wales from those who have considered this issue in significant detail and for whom implementation – and not yet more consideration – is the next logical step. In Northern Ireland, the emphasis is on ensuring the stability of devolved government and committing to the principles of both the Good Friday Agreement and the Windsor Framework. The only thing that is new here is a commitment to ‘taking forward discussions with the [Northern Ireland] Executive about a fiscal framework for Northern Ireland’.
Of course, these commitments are not nothing. In each case, and modest though they might be, the specific commitments made go against the grain of Conservative thinking that is sceptical of the Scottish Government’s place and intentions on the international stage and that has flatly rejected the devolution of justice-related matters to Wales. More generally, the language of collaboration with, and support for, devolved governments and the willingness to explore the further devolution of powers where appropriate marks an important tonal shift. This at least opens up a space within which constructive discussions about the future of devolution might take place.
A similar shift can be seen in relation to IGR. Once again, explicit commitments to legislative change appear to have been dropped, but there are considerably warmer words about improved collaboration, via a new Council of the Nations and Regions (to include the English mayors), better territorial representation on UK-wide bodies, co-operation with the devolved governments in trade negotiations, and restoration of decision-making over the allocation of structural funds to ‘the representatives of Scotland, Wales, and Northern Ireland’, as well as increased funding for the devolved governments via Barnett consequentials. While some of this language is vague, and the devolved governments may object to being placed on a par with the English mayors, they might also be relieved at the dropping of potentially coercive statutory obligations to co-operate.
Finally, on protection for devolved autonomy, the Labour manifesto’s proposals are significantly weaker than the Brown Commission’s recommendations. Where the latter recommended the entrenchment and protection of legislative consent by a second chamber radically reformed along territorial lines, the Labour manifesto commits to a much more modest ‘modernisation’ of the composition of the House of Lords, with no changes to its constitutional powers. And, where the Brown Commission favoured a new legally binding rule enforceable by the Supreme Court, Labour’s commitment in government is to strengthen the existing political rule: ‘setting out a new memorandum of understanding outlining how the nations will work together for the common good’.
Again, this commitment is not nothing. For one thing, the commitment to agree a new memorandum of understanding aligns with unanimous cross-party recommendations made by the Constitution, Europe, External Affairs and Culture Committee of the Scottish Parliament. In its 2023 report How Devolution is Changing Post-EU, the committee recommended a new memorandum of understanding between the UK and devolved governments for the post-EU era. This, the committee said, ‘should be based on a clear constitutional design’ and should specifically ‘include consideration of the principles of subsidiarity and proportionality’. For another, it is likely that both the UK and devolved governments will welcome the opportunity to take the heat out of the legislative consent process and restore a more efficient and co-operative process for legislation and inter-governmental relations. What that might look like remains to be seen, but a new memorandum of understanding could usefully clarify the scope of the consent requirement (that it attaches both to the policy and the constitutional arms of the convention); could redefine the convention by clarifying what sorts of circumstances might trigger the ‘not normal’ qualification (or could remove it altogether); could tighten expectations about the timing and function of early engagement between governments where a requirement for legislative consent might reasonably be anticipated; and could specify mechanisms for dispute resolution both on questions of whether consent is required or about the consequences of decisions to withhold consent.
To borrow a phrase used by Labour’s Shadow Chancellor, Rachel Reeves, on the campaign trail, against the instability of the UK’s territorial relations under Conservative rule, Labour’s offering seems to be that ‘stability is change’. However, there is a real risk that by rejecting more fundamental reform – by favouring political rather than legal regulation of the territorial constitution – Labour’s approach will retain or store up the major problems of political regulation that led us to the current state of territorial tension. These include:
Perhaps most problematically of all, heavy reliance on political regulation has created a gap between the constitution’s legal form and its political reality. In an era of increasing constitutional litigiousness this is particularly dysfunctional. By refusing to acknowledge the interplay of legal and non-legal rules, recent devolution jurisprudence has not only closed off the courts as a site of third-party dispute resolution in particular cases but more broadly has privileged legal form over political in a way that has undermined key safeguards of devolved autonomy. In refusing in Miller 1 to regard the Sewel Convention as imposing justiciable limits on parliamentary sovereignty, and in the Scottish Government’s judicial review of the Secretary of State’s section 35 veto of the Gender Recognition Reform (Scotland) Bill refusing to give any weight to the memorandum of understanding that covered when and how veto powers were intended to be used, the courts have emboldened the UK government to encroach upon devolved autonomy and weakened safeguards against the abuse of what were hitherto understood as reserve powers.
There are two more problems with the choice of political regulation here that are worth further consideration. First, whilst the political conditions might seem ripe to ‘grease the wheels’ of the existing constitutional machinery, this moment might yet be fleeting. For an incoming Labour Government as well as for their devolved counterparts it ought to be important to ‘fix the roof while the sun is shining’. After all, it is probable that an even more devolution-sceptic Conservative Party will emerge from the (apparent) wreckage of the 2024 campaign. Better to future proof against such a party winning power while the conditions are favourable than to wish in vain for stronger safeguards when they are in power. Second, and conversely, there is such a thing as too close co-operation at the intergovernmental level. Both Holyrood’s CEEAC Committee and the Senedd’s Legislation, Justice and Constitution Committee have already expressed concerns that the Scottish and Welsh Governments are still sometimes too ready to recommend consent to UK legislation in devolved areas on pragmatic grounds. The risk here is that pragmatic inter-governmental co-operation excludes the legislative and scrutiny functions of the devolved legislatures – constitutional goods in themselves – and with them important values of good governance such as participation, transparency and accountability.
Beyond ‘Change’
The Labour manifesto offers ‘first steps for change’ and a ‘reset’ of UK-devolved relations. This invites the question, what might be achievable beyond Change? What, in other words, might the next steps be towards better governance of the UK’s territorial constitution? Let us address this question from two different perspectives.
First, if Labour’s manifesto commitment to reform the political regulation of the territorial constitution is met, this might create space for further reform – to future proof these gains against decay by devolution-sceptic governments to come. In our view, it is not enough to make existing arrangements work better. Meaningful reform of the devolution settlement must reduce the gap between legal form and political reality. With regard to Sewel, there is scope for much harder-edged legal control, including greater clarity on the rules and processes for seeking consent, the consequences of granting or withholding consent, and directing disputes towards formal dispute resolution machinery and/or an explicit advisory role for the Supreme Court.
Second, Sewel is but one of several problems that undermine effective territorial governance in the UK. The Brown Commission report highlighted the UK Internal Market Act 2020 (UKIMA) as a particularly egregious example of UK legislation enacted without devolved consent, but was silent on the substantive problems posed by UKIMA for the territorial constitution, whilst the Labour manifesto makes only one reference to UKIMA – a commitment to ‘[protect] the UK internal market’ in relation to Northern Ireland. However, there are a number of legal steps that could reasonably be taken to ease the constitutional tensions created by UKIMA. The inclusion of proportionality, subsidiarity and de minimis principles would protect devolved autonomy and policy experimentation without undermining the basic features of an internal market. A broader approach to exclusions, e.g. on environmental or public health grounds, and a stronger role for the devolved governments and their respective legislatures in the consideration, scrutiny and implementation of exclusions would strike a better and achievable balance between regulatory divergence and open trade, reducing the risk of politicisation of exclusion decisions that has been apparent in recent practice.
In addition, the post-EU trend of UK Ministers taking powers in devolved areas might be made subject to greater legal control with the inclusion of legally enforceable consultation and consent requirements. A particularly egregious example is the power given to UK Ministers in UKIMA to spend in devolved areas – a power which has only tangential relevance to the maintenance of an internal market, and which potentially goes much further than the issue of structural funds explicitly addressed in Labour’s manifesto. A consent requirement would provide regulatory control over what is currently a very broad discretionary power and would allow for greater consistency between devolved policy priorities and UK government spending in those areas. More generally, attaching firm devolved consent requirements to UK Ministerial powers in devolved areas would permit more effective tracking and scrutiny of the exercise of those powers by the devolved legislatures.
Finally, a Labour government could act quickly – perhaps by amending section 28(7) of the Scotland Act and 107(5) of GOWA, or by making an order to amend Sch 4 of the Scotland Act and Sch 7B of GOWA – to undo the damage done by the Supreme Court’s judgment in the UNCRC case. By prohibiting the Scottish Parliament and Senedd from ‘conditioning’ the exercise of UK legislative powers in devolved areas, the Supreme Court has gone against the grain of parliament’s intention when enacting those provisions, has significantly narrowed the control that the devolved institutions have over the devolved statute book, and has rendered the devolved statute book incoherent, instable and unworkable in light of the volume of UK legislation that – often for reasons of historical accident or inertia rather than constitutional principle – continues to occupy devolved policy areas.
Change has nothing explicit to say about these fundamental challenges for devolution – UKIMA, UK powers in devolved areas and the Supreme Court’s s.28(7) jurisprudence. However, where quick, technical fixes can be made without undermining the UK internal market or the wider devolution settlement, these would go a long way to ‘resetting’ UK-devolved relationships, putting ‘the right powers in the right places’ and unlocking the potential for the sort of policy experimentation needed to ‘drive growth and prosperity’ in every part of the country. The Labour manifesto marks a useful first step in that journey. However, it is our view that the era of political regulation of the territorial constitution is over. It has shown itself incapable of safeguarding devolution against UK Parliament and Government overreach. Better legal regulation is therefore desirable and, for the reasons set out above, achievable where the political will exists to do so.
Chris McCorkindale, Reader in Public Law, University of Strathclyde
Aileen McHarg, Professor of Public Law and Human Rights, University of Durham
(Suggested citation: C. McCorkindale and A. McHarg, ‘The Territorial Constitution and the 2024 UK General Election’, U.K. Const. L. Blog (20th June 2024) (available at https://ukconstitutionallaw.org/))