Brexit and Devolution

Home , First Minister of Wales, Welsh Government

Securing Wales’ Future

Securing Wales’ Future | 1

Contents

First Minister’s Summary of Welsh Preface Government proposals 1 Page 4 2 Page 6

The EU Referendum and its Devolution: the impact on the governance Welsh context for EU of the United Kingdom withdrawal 3 Page 7 4 Page 8

Legislating for EU exit: Shared executive governance: ensuring continuity while a new approach to the respecting devolution exercise of powers in a United Kingdom outside the EU Page 11 5 6 Page 13

Inter-governmental relations: The future governance how things work now and how of the United Kingdom: they should change building consensus for the long term Page 17 7 8 Page 19

Conclusion 9 Page 20

Email: [email protected]

Leaving the European Union (EU) is the most significant challenge facing the United Kingdom (UK), a challenge thrown into even sharper relief by the outcome of the General Election. Decisions taken now will affect Wales for decades to come.

Our ability to trade, travel, withdrawal from the EU must our interests to do so. If there attract investment, determine reflect the reality of devolution. is a ‘Brexit dividend’ for Wales policies, legislate, support our And let us remind ourselves that then part of that must, surely, be countryside, invest in our regions devolution, just as much as EU the opportunity to exercise our – all of these will be influenced exit, is also based on referendums devolved powers in a fuller and by how we leave the EU. The UK and popular will. We, and more creative sense. which will leave the EU is not the colleagues across the UK, must same country which joined in keep that in mind as we deliberate As First Minister, representing 1973. At that time, the UK was our collective future. a party which has just received one of Europe’s most centralised a further incontrovertible states. Today, through nearly This document outlines the endorsement from the electorate 20 years of devolution, much Welsh Government’s proposals in Wales, I am both passionate has changed. Most notably, for responding positively and about Wales and proud of there are devolved legislatures creatively to the constitutional our United Kingdom. I see no and administrations for Wales, implications of EU exit. We contradiction between the two. Scotland and Northern Ireland. suggest how the division of Clearly, not everyone takes this Westminster and Whitehall competences between devolved view. There are those who see our retain responsibilities for some administrations and the UK Union as a shackle and others policies – health, education and Government can best be who are disrespectful towards agriculture, for example – in managed in the interests of all – the clear mandate for Welsh England only and for others, such and how we need to work together devolution which was reinforced as defence and foreign policy, for to ensure the smooth functioning by the 2011 referendum. the UK as a whole. of the UK after we leave the EU. I believe in Wales’ ability to address our future according to The EU which we are leaving is also our needs and values. I believe, very different from the European In this critical period equally, that a vibrant and Economic Community we joined in in our history it dynamic Union benefits us all. 1973. During this time, the EU has Any retreat towards a monolithic become much bigger, its powers is vital that the and centralised UK takes us in have increased and the degree of UK Government the wrong direction and in the integration between its Member and devolved long term, I am certain, will serve States has deepened greatly. to threaten, not strengthen, So the task of disengagement is administrations our Union. The opportunities complex and, as we prepare to work together in presented by EU exit must be withdraw, many difficult issues about the future, not the past. must be addressed within the UK genuine partnership I believe we must address four as we learn afresh how to manage to map our collective our business as a dynamic fundamental questions: multi-national democracy future. • how do we ensure coherence outside the EU. across the UK to protect the We should agree common functioning of our internal A return to the Wales and UK of approaches where these are market without at the same 1973 is plainly not an option. necessary – through discussion, time undermining devolution? The arrangements for the UK’s not diktat – because it is in all

4 | Brexit and Devolution • how do we achieve deeper and more sustained co-operation between the four governments in the exercise of our individual, but connected, competences after the UK withdraws from the EU? • how do we reform the machinery of government to support this coherence and co-operation? • how do we build wider consensus across political parties and civic society about the long term governance of the UK?

Wales and the UK will be stronger for an open discussion. This debate on the future of the Union should be positive and inclusive, and should develop without disparagement or disrespect to others. No one has the monopoly on good ideas.

This document sets out the Welsh Government’s approach to these questions. I want our United Kingdom to survive and prosper. This needs vision, ambition and imagination and I believe this document makes a significant contribution to that debate.

Carwyn Jones First Minister of Wales

Brexit and Devolution | 5 2 Summary of Welsh Government proposals

At the start of 2017 the Welsh We are calling for deeper The UK’s inter-governmental Government, together with and more sustained co- machinery must be reformed Plaid Cymru, published a White operation between devolved with a new UK Council of Paper, “Securing Wales’ Future”, administrations and the UK Ministers, served by an setting out how we think the Government after EU exit, a independent secretariat, to UK should approach withdrawal shared governance approach strengthen decision making from the EU. This new document developed on the basis of and collaboration. develops constitutional and agreement between the four governance ideas which were governments, and building on A Convention on the Future of first surfaced in that White the traditions of co-operation the United Kingdom should be Paper. built up during the years of EU held to build cross party and civil membership. Our proposals for society consensus on the future agreeing new UK frameworks governance of the UK for the Withdrawal from describe how this would work long term. the EU represents a in practice. New arrangements for consultation, joint decision major constitutional making and joint delivery will change for the be needed. UK and for Wales. This means redesigning our But Brexit must approach to inter-governmental relations, in order to support not undermine shared executive governance of devolution, which is devolved matters, and deeper collaboration where devolved now a fundamental and non-devolved issues and permanent inter-connect. part of the UK constitution as recognised in the Wales Act 2017.

6 | Brexit and Devolution 3 The EU Referendum and its impact on the governance of the United Kingdom

As a consequence of the EU By the time of our likely EU As the UK leaves the EU, referendum of June 2016 the exit, the UK will have been in returning to the 1973 status quo UK has activated Article 50 of the EU for nearly 50 years. is obviously not an option. Brexit the Treaty on European Union. During this half century the arrangements within the UK This has triggered a negotiation competences of the EU have must recognise devolution and between the UK Government extended substantially and the the allocation of competences to and the EU on the terms of UK’s integration with EU policies, the Welsh Government and the withdrawal. The provisions of markets, programmes and National Assembly for Wales - as Article 50 allow two years for practices is now wide and deep. well as those of our Scottish and these negotiations and, all other Consequently, disengagement Northern Irish counterparts. things being equal, the working from the EU will necessarily be assumption is that the UK will complex and many challenges A positive future formally leave the EU in spring must be addressed. 2019. for the UK must be based on respect, Since the referendum, the It is not only the recognition of Welsh Government has been EU which has in discussions with the UK competences and Government, the Scottish changed over joint decision- Government and the Northern the last 50 years. Ireland Executive about the making in areas The UK has itself overall negotiating priorities of of common UK the UK. The Welsh Government’s changed profoundly. priorities are set out in our interest. White Paper “Securing Wales’ Devolution is Future”. These discussions foremost among have progressed through a combination of bi-lateral these changes. engagements and the formal The UK entered the Common inter-governmental machinery of Market as a highly centralised the Joint Ministerial Committees state but we will leave the EU (JMC). JMC Plenary brings as a much more decentralised together the respective heads country, governed through four of government from the four administrations drawn from administrations while JMC EU directly elected legislatures. Negotiations is the forum for More generally, the General more detailed work by the UK Election which has just been Government and Ministers held has highlighted that no one representing the devolved political institution or political administrations. The Welsh party can legitimately claim Government has played a alone to speak for the whole of constructive part in this process the UK. and remains committed to working with partners to produce positive outcomes for Wales and the UK.

Brexit and Devolution | 7 4 Devolution: the Welsh context for EU withdrawal

Devolution in Wales Some of these policy areas, Devolution in Wales was The National including economic development, established in response to the Assembly for Wales environmental protection and Welsh referendum of September agriculture and fisheries, are also 1997. The Government of is now the principal areas where the EU institutions Wales Act 1998 paved the way law-making body have had the most significant for a new Welsh democratic powers. On these matters the institution. The first elections for Wales on most National Assembly must not, were held in May 1999 and matters which affect in exercise of its powers, enact legislation in contravention of powers were transferred from people in their daily UK ministers to the National EU law. Assembly for Wales on 1 July lives, such as the Welsh Government Ministers that year. following: exercise a wide range of executive Devolution has been transformed powers in broadly the same fields • Health since 1999 as a result of further as those in which the Assembly Acts of Parliament in 2006, • Education and training can legislate. Welsh Ministers 2014 and 2017. A further • Housing make decisions, award grants, make secondary legislation and referendum was held in 2011 • The environment take other action necessary to which confirmed popular support • Economic development for devolution in Wales. Among promote the economic, social and • Local government other matters, this referendum environmental well-being of Wales. conferred powers on the National • Transport In carrying out these functions Assembly for Wales to make • Planning Welsh Ministers are accountable to the National Assembly. primary legislation in devolved • Agriculture and fisheries areas. The Wales Act 2017 • Culture Under the UK constitution, the UK confers additional powers and • Sport and recreation Parliament retains the power to establishes a ‘reserved powers’ legislate on any matter for Wales model for devolution in Wales. as for the rest of the UK.

(below) The Senedd, Cardiff Bay

8 | Brexit and Devolution However, in accordance with the between government activity and We also contribute, in accordance ‘Sewel Convention’, Parliament each administration has been with the Memorandum of will not normally legislate for free to pursue distinct policies Understanding first agreed in Wales on matters which lie in line with its mandate. This 1999 (see chapter 7), to the within the National Assembly’s is the case, for example, with development of the UK’s policy legislative competence, or affect most front-line public services lines for representation in that competence, unless the such as education and health, meetings of European Councils. Assembly has given its formal which are very largely devolved The JMC Europe (E) provides the consent through a Legislative matters. Even here, though, machinery for our engagement, Consent Motion. In contrast, there is some linkage; for alongside the other devolved Welsh Ministers’ executive example, cross-border health administrations, with the UK’s powers have been transferred referrals are covered by an policy development process on away from the UK Government inter-governmental protocol EU matters. and are generally exercisable free which largely works well. In of any possibility of interference general these issues have The Welsh Government does not by UK Ministers. Welsh Ministers not presented substantial recognise the description, in the owe no accountability to the administrative (as opposed previous UK Government’s White UK Parliament. The model of to political) challenges for Paper (“Legislating for the UK’s devolution practised in the inter-governmental relations withdrawal from the European UK has some examples of co- within the United Kingdom, Union”) of the apparently ordinated agreements in relation partly because they have a exclusive responsibility it to the exercise of competence, relatively limited international attributes to the UK Government but most decisions are taken dimension and there is, in the development of EU policy either by Welsh Ministers or by therefore, no requirement to frameworks. The UK Government UK Ministers as appropriate. establish a UK-wide external normally represents the UK in facing perspective. The European Council of Ministers In reality however, given the existing devolution settlement meetings but, in doing so, it must distribution of executive establishes obligations on present the policy of the United responsibilities between the the National Assembly and Kingdom as a whole rather than governments, the actions of Welsh Government to observe the policy of the UK Government one government may well have international obligations and alone. significant implications for these responsibilities have the policies of one or more of Since devolution began, the been fully discharged during the the others, or for citizens in Welsh Government has been able period of devolution. ‘another’ territory. This means to exercise appropriate influence that the machinery for inter- directly in Brussels, through our The Welsh Government’s collaborative arrangements with governmental collaboration needs relationship with the EU to be effective. The existing the UK Government. As a broad arrangements operate under Those devolved competences generality, Welsh Ministers have the aegis of the Joint Ministerial which have a significant viewed the cross-UK collaborative Committee (JMC), which brings international impact (actual practices on EU business together Ministers from the or potential) have, in practice, positively as a means to advance four administrations to discuss generally been exercised within and protect the Welsh interest at matters of common concern. The the framework of EU regulation. EU level – working through the JMC is a consultative body and Under current arrangements, the UK as the Member State of which takes no decisions: EU withdrawal Welsh Government engages with Wales is part. Withdrawal from raises fundamental questions EU-related business in two ways. the EU will require entirely new arrangements for dealing with about its role and working First, we deal directly with these matters. arrangements, and we address the European Commission on these in chapter 7. agreeing the strategic direction We are clear that EU exit should This model of distinct and and administration in Wales of not result in the ‘repatriation and separate competence has worked key programmes financed by redistribution’ of the functions of well in areas where there is the Structural Funds, and on government within the UK. The relatively little inter-dependence implementation of the Common powers will lie where they rest Agriculture Policy. Brexit and Devolution | 9 as a result of Parliamentary responsibilities EU membership and the legislation since 1999, but devolution settlements these will no longer be exercised in respect of any We also reject the view, set out subject to EU obligations. UK-wide policy in the UK Government’s White That is the position under the frameworks Paper that the existing devolution devolution legislation, and that settlements are ‘premised’ on the position, as was noted in the required after EU UK’s continuing membership of the 1 ‘Miller judgement’ , can only exit has taken effect. EU. As the Supreme Court pointed be changed by new primary out in the ‘Miller case’: legislation at Westminster – Powers already devolved must “When enacting the EU constraints which we believe is unnecessary remain devolved and Wales has in the Northern Ireland Act and the and undermining of devolution. a legitimate interest in a range other devolution Acts, Parliament of reserved policy areas which proceeded on the assumption The Welsh will impact on us. The Welsh that the United Kingdom would Government expects to continue, be a member of the European Government is within the scope of our powers, Union….But, in imposing the EU strongly resistant to contribute to the development constraints and empowering the of policy frameworks where they to any suggestion devolved institutions to observe are necessary, as it has done in and implement EU law, the that Whitehall the past: our proposals on this devolution legislation did not go and Westminster are set out in chapter 6. further and require the United Kingdom to remain a member of have exclusive the European Union….”

(below) Main entrance of the Supreme Court, London

1 www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/ 5 Legislating for EU exit: ensuring continuity while respecting devolution

The Welsh Government’s ambition the EU we are guaranteed an • devolved matters where UK is that the Great Repeal Bill or input into the formulation of a wide approaches will need to any equivalent legislation brought common UK position. be negotiated and agreed; forward by the UK Government • non-devolved matters which should be constructed in a way From the outset of the debate about our collective future outside will have a major impact that freezes EU law into UK law, on devolved services and at the point of our departure from the EU, the Welsh Government has recognised a need to develop budgets, or on Wales more the EU, while respecting and generally. accommodating devolution. We UK frameworks. It is clearly believe this is straightforwardly important that no new barriers To deal with these matters of achievable and the Welsh to the effective free movement inter-connected competence, the Government stands ready to of goods and services within the Welsh Government advocates work with the UK Government to UK are created as a result of EU a deeper and more sustained help frame the legislation in an withdrawal. The development co-operation between devolved appropriate way. of UK frameworks should be administrations and the UK taken forward immediately on Government after EU exit. We The UK Government’s White the basis of negotiation and believe that the traditions of Paper (“Legislating for the United agreement among the four UK co-operation which have been Kingdom’s withdrawal from the administrations. built up during the years of EU European Union”) signalled an membership provide a useful intention to replicate the current But, separately from EU exit, body of experience for inter- EU frameworks in domestic law. there are some important areas governmental thinking and a It is suggested there should be of inter-dependence between useful starting place for further “intensive discussions with the devolved and non-devolved work. We believe it is implausible devolved administrations to identify matters. For example, the UK that the UK can withdraw from the where common frameworks need Government’s proposed changes EU and then continue with existing to be retained in the future, what to social security benefits, and governance arrangements as if these should be, and where to higher education, have had nothing major had happened. We common frameworks covering the very significant repercussions believe that such an approach, UK are not necessary. Whilst these for the Welsh Government which or a centralising agenda, will discussions are taking place with the existing inter-governmental threaten the Union over the long devolved administrations the UK machinery has not adequately term. We further believe that a Government will seek to minimise addressed. Most recently, coherent and adaptable response any changes to these frameworks”. the interface between the UK to our post-EU governance Government’s planned reforms arrangements will help bind our While we welcome dialogue with of prisons and youth justice, own four-nation Union together the UK Government in areas of and devolved services, is very more closely. common interest, we oppose extensive and we have at present new and additional constraints no machinery for addressing Co-operative and collaborative being placed on our devolved this. There are many other work between the devolved legislative competence. Among the examples. In short, the existing administrations and the UK arguments for EU exit in Wales was inter-governmental machinery is Government is clearly the best the opportunity to escape from no longer fit-for-purpose: we set approach both to continuity EU policy constraints; swapping out our proposals for change in legislation for EU departure and EU constraint for a UK version chapter 7. for the longer term as we shape doing the same thing would leave a new future for the United Wales no better off in respect Withdrawal from the EU will Kingdom: indeed, particularly of devolution – and arguably radically increase these areas of in the light of the outcome worse, since in our dealings with inter-connected competence. It of the General Election, any will do so in relation to both:

Brexit and Devolution | 11 other approach would seem If it does not, then the Welsh environmental and other constitutionally inappropriate Government must consider other protections or allowing and reminiscent of the 1980s. available options to protect our exploitation of workers. If we devolved interests, including the cannot be confident that the We hope that the UK option of introducing our own UK Government will work fairly Government will recognise legislation to secure the rights with us, and in good faith, this by: of the National Assembly and to secure these outcomes, • Consulting fully with the Welsh Welsh Ministers in respect of EU then we must pursue other Government and the other derived law in devolved areas of avenues. devolved institutions on both competence. The following chapters set the principles and the detail out how we think co-operative of the Great Repeal Bill or Our objectives in doing so would arrangements could work in equivalent legislation; be two-fold. First, to protect the devolution settlement and practice, through new inter- • Agreeing that the Sewel powers which the Welsh people governmental agreements, Convention applies and that have consistently voted for and new machinery for a Legislative Consent Motion over many years. Secondly, delivering them. must be sought from the to preserve for the long term National Assembly; the social and environmental • Removing any threat of protections which we have introducing new constraints accrued through the EU. on the competence of either Withdrawal from the EU must the National Assembly or the not be a licence for slackening Welsh Government.

12 | Brexit and Devolution 6 Shared executive governance: a new approach to the exercise of powers in a United Kingdom outside the EU

This chapter proposes that we will remain with the devolved to the UK Government. The need to move from our current institutions in Wales. Any other Welsh Government will have binary (devolved or non-devolved) outcome would, in our view, an active policy and practical approach to competence, to one require UK Parliamentary interest in many of these, that recognises the reality of inter- legislation to reverse the existing including State aid regulation, connected competences. This will devolution settlement. Such a competition law, migration and not change the need for clarity course would directly contradict trade policy. on where powers lie, but will the explicitly expressed introduce a more sophisticated preference of the Welsh people Box 1: The Components approach to the exercise of those and would be vigorously opposed of an EU Framework powers in the interests of better by the Welsh Government. We In each regulatory framework governance and delivery for believe an approach along these there is a complex picture of citizens. lines would weaken trust and international, EU and domestic undermine the Union. legislation. In addition, As discussed, many of the governance, administrative and powers devolved to the National The current EU policy and funding arrangements operate Assembly and Welsh Government regulatory frameworks at the EU and domestic levels are currently exercised within Under current arrangements, to support the operation of EU the framework of EU regulation. the EU ensures policy coherence frameworks. The powers include agriculture, and common practice, with fisheries and environmental agreed frameworks, in its An EU framework can therefore protection. These powers were areas of competence. In order consist of all or some of the devolved by means of UK to address the implications of following: Parliamentary legislation based removing these frameworks, • An overarching strategic policy on the explicit approval of the and to understand which direction developed and set Welsh people in two referendums aspects may be needed on a at the EU level; (1997 and 2011). The Wales Act UK-wide basis, it is important to 2017 frames Welsh devolution • A legislative framework, appreciate the extent and scope within a ‘reserved powers’ model enacting the policy direction, of the current EU policy and along similar lines to Scotland’s consisting of EU Treaties, regulatory frameworks. These settlement. Directives and Regulations, are summarised in Box 1. some of which are directly This means that matters These EU frameworks also applicable; reserved to the UK Parliament’s ensure aligned goals and co- • The legislative framework legislative competence are ordinated approaches within the also translates international specifically listed; competence in UK, where the policy choices obligations (where they exist) respect of matters not explicitly of four administrations might into a common EU framework listed is devolved. One of the otherwise challenge the smooth which is then tailored and benefits of this model is that it frictionless functioning of the implemented at a domestic provides greater clarity about UK’s own internal market. level; which powers are reserved and which are not. In addition, following Brexit, a • Domestic legislation as range of powers outside of our necessary to enact the At the point of UK exit from the devolved competence currently EU requirements into EU, unless there is Parliamentary exercised exclusively by the EU, domestic law; legislation to the contrary, those or jointly by the EU and Member devolved powers currently States, will most probably return exercised within an EU context

Brexit and Devolution | 13 • Administrative arrangements “When the UK So far as the non-devolved including for example in matters mentioned above are relation to registration, leaves the EU, the concerned, the Welsh Government inspection, labelling, powers which will naturally have an active licensing, quotas, export interest in these. In the same requirements and the EU currently way that there must be UK-wide management plans; exercises in relation discussions on some devolved • Enforcement mechanisms; policies, we also argue for UK- to the common wide discussions and agreement • Support for research frameworks will in some aspects of non-devolved underpinning policy policy. We believe this is development; return to the UK, necessary to ensure that polices • Financial support such allowing these have legitimacy across all parts as structural funds and rules to be set of the UK and to ensure that there competition rules such as is appropriate integration where in respect of State aids; here in the UK necessary between devolved and • Governance in place within by democratically- non-devolved policies. the UK as a Member State to oversee the UK’s input elected Determining the case into the design and delivery representatives” for shared governance of the EU’s frameworks, frameworks at UK-level including agencies and We agree with this, but hold As we plan for the UK’s withdrawal delivery bodies and decision that it is democratically-elected from the EU, it will be essential making fora etc. representatives in Cardiff, for the UK Government and the Edinburgh and Belfast as well as devolved administrations to agree those in London who need to set where the shared governance It may well be that in some these rules in areas of devolved approach is needed. We propose of these areas the UK will competence. this should be approached on need to maintain regulatory the basis of subsidiarity, and The Welsh Government convergence with the EU even where it is determined that a believes that, on matters after Brexit, in order to secure shared governance approach within devolved competence, the sort of full and unfettered is needed, there should be and where necessary, binding access to the Single Market consideration of the scope and UK frameworks should be which is our main objective mechanisms required in each drawn up and agreed by all for our future relationship case. As Box 1 illustrates, there four administrations: Wales, with the EU. is a wide spectrum of options Scotland, Northern Ireland, and and regulatory mechanisms to be But in other areas, a the UK Government representing considered, including: structures consequence of the UK’s exit England’s interest and of governance, decision making from the EU will undoubtedly separately – if necessary – the bodies, and operational oversight. raise this question: how do wider Union interest. The Welsh we ensure coherence of policy Government recognises the Where it is agreed that shared and practices across the UK need for such frameworks and governance frameworks to protect the functioning of readily accepts the duty to reach are required, this will not our internal market without agreements which benefit all necessarily mean securing policy undermining devolution? and harm none. What we could uniformity. In some instances not accept, and what would The previous UK Government’s frameworks may be concerned risk tearing the Union apart, White Paper “Legislating for the to promote convergence and would be if the UK Government United Kingdom’s withdrawal a common approach to be attempted to take powers to from the European Union” followed by all administrations itself and seek to impose by states on pg 27: – for example, in dealing with central diktat what can and specific environmental threats. should be achieved through In other instances frameworks negotiation, shared interest may be designed to constrain and agreement. 14 | Brexit and Devolution (above) Llyn Clywedog reservoir divergence but still leave case for maintaining existing EU a. Measures which support a fully individual administrations with policy frameworks domestically functioning internal UK market room for manoeuvre to suit will need to be considered afresh these might include: common local circumstances – as for in the UK context. minimum standards which example, the existing Common enable goods to be traded both Some existing EU frameworks, Agricultural Policy does (a within the UK and abroad; rules for example, those created conclusion endorsed for UK on State aid/business support by the Birds Directive or the domestic law by the Court of (subject to regional variations or Bathing Waters Directive, are not Appeal in the ‘Horvath case’2). exceptions); and environmental primarily motivated by internal It is worth noting, by way of requirements on production market considerations, and there illustration, that environmental industries – in so far as these are may be no need to retain a UK- standards under EU Directives not pre-determined by our future wide regime for these. This does currently allow for divergence relationship with the EU or other not mean that the protections between administrations, so international obligations. there should be no assumption achieved by such Directives of convergence under future UK should be withdrawn; the point b. Matters where there is a direct frameworks, except where this is rather that it should be for dependency between devolved is necessary to secure an the responsible governments in and non-devolved policy areas agreed common policy outcome. each part of the UK to have the outside of the EU, the Welsh freedom to decide. Government would have a So where regulatory convergence more direct interest in trade is no longer a requirement of Criteria for shared negotiations, particularly given our future relationship with governance frameworks that these would have important the EU, we propose a pooling Clear and agreed criteria, inter-dependencies with key of sovereignty by the devolved having regard to the principle aspects of the policy and administrations and the UK of subsidiarity, will be required regulatory context for devolved Government, supported by a for identifying where UK-wide areas such as steel, agriculture system of shared governance, to approaches and decision-making or fisheries. At present, the Welsh regulate aspects of the internal structures are appropriate. Government has the opportunity UK market. This should not be a Such criteria might include: to work with the UK Government matter of simply replicating EU to influence EU negotiating frameworks at the UK level: the mandates on new free trade

2 http://lexisweb.co.uk/cases/2007/june/r-on-the-application-of-horvath-v-secretary-of-state-for-the-environment-food-and-rural-affairs agreements to ensure that Welsh on evidence, as summarised in Box 2: inter-governmental interests are protected. It would Box 2. As a general proposition, collaboration: animal be perverse if, post-Brexit, we we do not believe it will be in health and welfare had less opportunity to ensure the general interest to develop • An agreed set of overarching that trade policy does not four separate and incompatible principles which frames each adversely impact on devolved animal health regimes across the administration’s strategy; policy areas. Continuing full four countries of the UK. Such • Policies recognise cross- and unfettered access to the an outcome would complicate border issues, and Single Market is our primary commercial mobility of livestock implementation is joined ambition for EU negotiation and and produce, and add needless up and coherent; we remain unconvinced of the cost – an outcome which is in UK Government’s arguments no one’s interests. What we will • Great Britain (GB) for leaving the Customs Union, need, plainly, is a set of binding Livestock and Welfare but if this were to happen, we UK-wide framework agreements Enforcement Group includes need appropriate constitutional developed and sustained representatives of 3 GB arrangements to ensure our through negotiation. administrations, the Food interests are protected. Standards Agency, Food Animal health and welfare is Standards Scotland and c. Trans-boundary co-ordination a devolved matter and each the Animal & Plant Health Many issues are trans-boundary administration sets its own Agency, and meets quarterly in nature where activity in one policy priorities, within the to share intelligence and country has a consequential context of EU regulation. The develop consistent proposals effect in another. Chief Veterinary Officers of and communications; the four UK administrations • the four UK administrations d. Shared administrative work closely together to ensure work together to align arrangements that responses to animal evidence-based action in some cases shared health and welfare threats are in response to serious administrative arrangements evidence-based, and that they animal health disease, with may be the most efficient or cost are co-ordinated and aligned a collectively agreed UK effective way of continuing to as far as possible. deliver services after EU exit. contingency plan; Box 2 illustrates inter- • disease control strategies e. Compliance with governmental collaboration in set out complementary, international standards a high profile and fast moving co-ordinated measures for for instance the co-ordination area, enabling the UK to meet its managing an outbreak in between administrations of international obligations, and to each part of the UK; controls to ensure the UK meets support both trade and animal • these plans and strategies international obligations. welfare. are underpinned by joint An example of This is the kind of approach working arrangements, inter-governmental that will be needed to underpin including monthly meetings collaboration and shared new UK inter-governmental of the Chief Veterinary governance: animal health frameworks as discussed above. Officers; and welfare To oversee these, and ensure • taken together, these the necessary democratic We argue that a new model arrangements meet the accountability, there will need of shared governance is both UK’s legal obligations to to be new inter-governmental essential and achievable. the EU and the OIE (World governance structures, led The current arrangements for Organisation for Animal by Ministers, as outlined in protecting animal health and Health). chapter 7. welfare across the four UK administrations illustrate what can be achieved through shared purpose and collaboration based

16 | Brexit and Devolution 7 Inter-governmental relations: how things work now and how they should change

Everyone agrees that leaving JMC Europe (E) remains the features of political governance the EU is a step of profound body which develops the UK’s across the world, such as in importance which will radically agreed positions on EU business Australia, Austria, Canada and revise how we are governed. It is (with the full participation of Germany. While developing a model inconceivable that so major a the devolved administrations in to suit our own circumstances, the change can occur without far- respect of devolved matters) and UK should be open to learning from reaching changes in how the will continue to operate until the approaches elsewhere in order to four governments within the UK point of EU exit. ensure our political leadership is fit work together. This calls for clear for purpose. thinking and imagination. The British Irish Council (BIC) also provides an important forum Political leadership: a new How things work now for discussions on the UK’s UK Council of Ministers withdrawal from the EU and we We propose a UK Council of Formal discussions between believe the significance of BIC Ministers system. This would devolved administrations and should grow over time. the UK Government take place operate along lines similar to, but on much smaller scale than, through the Joint Ministerial What needs to change Committees (JMC). The JMC the EU Council of Ministers. In structure is set out in the EU withdrawal raises fundamental practice, the four administrations Memorandum of Understanding questions about the JMC’s role would meet regularly in a variety (MoU) between the UK and working arrangements. In of formats to negotiate common Government and the devolved our view, these are inadequate rules and frameworks where it is administrations, originally agreed for the new challenges we face agreed that coherence across the in 1999, with an updated version as discussed. The JMC is a UK is necessary and beneficial. presented to the UK Parliament, consultative body and makes no We will need a set of binding the Scottish Parliament, the decisions – it might negatively UK-wide framework agreements National Assembly for Wales and be characterised as, effectively, developed and sustained through the Northern Ireland Assembly a ‘talking shop’. What will be negotiation, although the agreement in October 2013. The MoU also needed in future, outside the EU, of common approaches as a basis comprises concordats on a is a structure capable of taking for free transactions across the number of matters including the forward negotiations on dossiers UK should not prevent individual co-ordination of EU issues. of common UK-wide interest administrations developing and reaching binding decisions. enhanced policies, over and In variable formations the It must also be supported by a above framework imposed JMC bring together Ministers dispute resolution mechanism. requirements, within their own from the four administrations sphere of competence. The new to discuss policy in areas of Lessons from effective Council of Ministers should have common interest across the Government across the a structure and work programme UK. The Prime Minister and World designed to enable the negotiation First Ministers meet at JMC The UK will need to establish our and implementation of such Plenary (P). Traditionally this own arrangements to strengthen agreements. The case for statutory met once a year and only in the Union as we leave the EU, underpinning of the Council London, until January 2017 but there are useful lessons to of Ministers could usefully be when it met outside London for draw on from other countries explored in this context. the first time in Cardiff City Hall. with decentralised governments. JMC EU Negotiations (EN) was Formal structures to support established after the referendum co-ordination and collaboration as the main Ministerial forum between the different levels of for EU exit negotiations. The government are well established

Brexit and Devolution | 17 How decisions should What happens if agreement A new independent be made cannot be reached at all secretariat A UK Council of Ministers would through normal procedures? At present the JMC secretariat comprise four administrations: We recognise the need for is a group of officials, in a virtual Wales, Scotland and a backstop arrangement as secretariat mode, but in practice Northern Ireland as devolved part of the overall operating part of the constitutional team administrations, with the UK procedure and we are open to in each administration. This Government representing the further discussion on this. structure is not sufficiently robust UK and England. Decisions Failure to reach agreement to manage a programme of work based purely on population on a specific matter implies to underpin shared or inter- share would result in the UK deadlock in a negotiation. connected competences. Government permanently The first response to such a dictating outcomes, thus The work of the UK Council deadlock should be a period of Ministers would best be undermining the collaborative of independently managed democratic principle. managed, we believe, by arbitration: the arrangements an independent standing Equally, if the three devolved for this should be discussed administrations were able to secretariat charged with and agreed by the four cohering arrangements in the outvote the UK Government this, administrations. too, would produce perverse general interest, similar to the and undemocratic outcomes (it current structure for the British- Implementing decisions Irish Council secretariat. In is worth noting, in any case, that and resolving disputes no assumptions should be made practice, the personnel would Once frameworks have been that devolved administrations be seconded from each of the agreed which relate to devolved share ‘block interests’: on the four administrations, but would matters, responsibility for specifics of policies, devolved operate independently of their implementing them should administrations are often no more ‘home’ administrations’ interests. rest with the devolved or less likely to agree with each An independent secretariat – with administrations (including where other than they are with the UK ownership shared across the four necessary securing appropriate Government). administrations – would provide a consent from legislatures) in strong foundation for supporting The first option should always respect of their territories and the shared governance approach be to achieve decisions through with the UK Government for we propose in chapter 6. consensus and, in general, England. this is the outcome we would Where disputes arise about most frequently expect. Where the implementation of agreed consensus is not possible, standards, there will need to be we suggest a combination an independent adjudication of the UK and one of the mechanism. devolved administration should be sufficient for affirmative This might be undertaken by (or decisions. This would ensure the under the aegis of) the Supreme degree of plurality necessary Court, or might involve a new for legitimacy in a multi-national institution in the first instance. state while respecting the dynamics of population share.

18 | Brexit and Devolution 8 The future governance of the United Kingdom: building consensus for the long term

with options for sustainable Instead, we believe that ‘pooled Leaving the EU is future governance models sovereignty’ offers a better way for a UK operating in a global forward. Pooled sovereignty a profound change environment in fundamentally recognises the special nature of direction for the changed circumstances outside of the UK as a union of four the EU. Its chair should be a countries which combine, UK. It is unrealistic, respected independent figure through democratic consent, to impractical and, we of stature and the Convention form the world’s most successful believe, undesirable, should take evidence from the multi-national democracy. UK Government, the devolved to take a step of this administrations, Parliaments and In the era of devolution this balances the freedom to act magnitude without National Assemblies, elected mayors and local government, with autonomy in each nation significant change business and civil society. with agreement to work together collaboratively in specified areas in how we conduct The Convention should consider of common interest. business within the the range of major questions which will face the UK once Pooled sovereignty acknowledges UK. Simply carrying it is outside the EU. These that the people of Wales, like on as we are is not a include effective constitutional those of Scotland and Northern Ireland, have chosen devolution plausible option. arrangements for a Union of four nations, respecting the as their preferred model of identity and aspirations of each, government. Pooled sovereignty The Welsh Government supports offers a different relationship a dynamic and inclusive UK while preserving the collective interest of the whole. The UK among the nations of the Union which works for the benefit of based on mutual respect and all its parts and disadvantages is, in spite of many challenges, a successful multi-national parity of esteem among the none. We believe in mutual administrations. respect for all parts of the UK democracy but to remain so it and a principle of solidarity must change and adapt to meet underpinning the collective new circumstances. interest. Our role, plainly, is to promote and protect the We believe that interests of Wales and we will always pursue that aim the traditional with vigour. However, we also model of exclusive recognise that a fair and successful Union must balance Westminster a range of interests, territorially Parliamentary and socially, across the whole UK. sovereignty is For these reasons, we believe outmoded and the time is now right to convene inappropriate to the a Convention on the Future of the circumstances of a UK. This should draw together the various interests across the modern UK. Union with a view to reporting

Brexit and Devolution | 19 9 Conclusion

The Welsh Government “primarily tasked In the meantime, this paper sets appreciates that, for many in the out the Welsh Government’s UK, some of the ideas set out with examining proposals for action that can in this document may appear the full context be taken now in response to challenging. Adopting them would the constitutional and inter- amount to a major constitutional of relationships governmental challenges presented reconstruction of the UK, and we between the by leaving the EU. These are do not under-estimate this. practical and constructive devolved proposals designed to achieve the But in our view, the UK’s administrations deep and sustained co-operation withdrawal from the EU represents and the UK between governments that we an existential challenge to the believe is needed. In our White UK itself. As an administration Government, Paper, “Securing Wales’ Future”, committed to both the Union and bearing in we called for imagination and vision devolution, we consider that all to design a new way of working. options should be on the table, in mind [our] joint This paper sets out the Welsh order to preserve and foster unity enterprise of the Government’s proposals to respond for the UK while guaranteeing the to this challenge, to protect the diversity of its constituent nations. governance of interests of Wales and strengthen We want to assure the principle the UK”. the Union. of autonomy as well as the imperative of integration. We are It continues to be the Welsh clear that an excessive emphasis Government’s belief, and even on centralisation in the UK’s more so after the EU referendum response to Brexit would be and the General Election, that a counter-productive and damaging, debate along these lines, across and we are concerned that the the political parties and civic UK Government’s White Paper society, about the future of our veers in that direction. Union is vital to its survival. Can the Union survive EU exit Such a convention would be in the medium and long terms? charged with putting in place No-one can be sure. appropriate, sustainable political institutions recognising the quasi-federal nature of For some years the United Kingdom, resolving now (and long questions around the way in which the interests of England before the 2016 EU and English regions (including referendum), the First the position of the London Mayor and metro-mayors) are fully Minister has argued represented and achieving clarity for the establishment on the form and function of UK- of a constitutional wide political and governmental institutions, including the House convention: of Lords.

20 | Brexit and Devolution