Chapter 5: Devolution and treaty-making
Introduction
124.Over the past two decades devolution of powers to Scotland, Wales and Northern Ireland has been implemented and extended, providing the devolved legislatures with competence over a range of policy areas. Future trade deals negotiated by the UK Government are likely to cover issues that are within devolved competence, such as agriculture and fisheries. However, as treaty-making is reserved, only the UK Government can negotiate and ratify such treaties.124
125.Many witnesses argued that the devolved governments should be involved in the negotiation of treaties in areas falling within their competence, and the devolved legislatures should be able to scrutinise them effectively. Jill Barrett and others observed that “The UK’s long-established treaty procedures were … devised before the devolution settlements. The devolved administrations and legislatures are currently demanding a more formal and substantive role in shaping international agreements that affect them.”125
Treaty-making and the devolved executives
126.The 2013 Memorandum of Understanding (MOU) between the UK Government and the executives of Scotland, Wales and Northern Ireland sets out the principles that apply to different areas of inter-governmental relations, including on international relations.126 Concordat D, on international relations, states:
“Under the devolution settlement, the United Kingdom Government is responsible for international relations. The Secretary of State for Foreign and Commonwealth Affairs is responsible for the foreign policy of the United Kingdom, and has overall responsibility for concluding treaties and other international agreements on behalf of the United Kingdom.”127
127.Jill Barrett and others explained that “devolved executives and legislatures currently have very limited direct involvement in the negotiation of international treaties, even when the duty to implement those treaties is devolved and when devolved interests might diverge from or even conflict with UK interests.”128 The Scottish Government said that it already faced “difficulties … in playing a full and equal role in influencing major foreign policy decisions where Scotland has a legitimate interest.”129
128.While treaty-making will continue to be a power available only to the UK Government, devolution has resulted in the institutions in Edinburgh, Cardiff and Belfast becoming responsible for a range of policy areas. Repatriation of powers from the EU gives rise to new areas in which UK (e.g. trade negotiations) and devolved (e.g. agriculture) competence overlap. Global Justice Now said:
“many areas of policy that trade deals may impact on are devolved, including: agriculture, education, human rights, procurement, local government and healthcare. Modern trade deals can have a serious impact on these areas of devolved policy and more broadly on the powers of the Scottish parliament and Welsh and [Northern Ireland] assemblies.”
129.Disputes over competence may arise after Brexit if the devolved institutions refuse to implement treaty measures that they oppose, but which the UK Government has already ratified.
130.Bruce Crawford MSP, Convenor of the Scottish Parliament’s Finance and Constitution Committee, said that overlapping competences in relation to treaties meant that the devolved institutions should be involved throughout the treaty-making process:
“Whilst recognising that international trade is a reserved competence, the [Finance and Constitution] Committee was equally cognisant that trade agreements will include a wide range of issues which fall within devolved areas, meaning that any future trade agreements may well limit the legislative competence of the devolved institutions. In the Committee’s view, it is therefore essential that the devolved institutions are involved at all stages of the trade negotiation process particularly because, as stated by the House of Commons Select Committee on International Trade, ‘each of the four nations of the UK may differ in their priorities for trade deals.’”130
131.The Scottish Government said that they should have a “formal role in establishing the UK’s priorities, policies and positions on international agreements relating to reserved matters that affect Scottish interests” where the issue is a reserved competence of the UK Government, such as security. It also argued that treaties with both reserved and devolved areas should have “prior consent from the Scottish Government on the negotiation priorities, and subsequent consent by the Scottish Government and Parliament prior to ratification.”131
132.Mick Antoniw AM, Chair of the Welsh Assembly’s Constitutional and Legislative Affairs Committee, argued that treaty-making should cease being a reserved matter for the UK Government:
“I would like there to be a specific role that required the devolved institutions to give approval to areas. I suspect that that is a step too far within the current politics in Parliament. The way to deal with it is to say that if we are genuinely recognising devolved responsibilities, and for them to be carried out by the devolved Governments effectively, when treaties are negotiated, there has to be a specific role of engagement and participation for the devolved institutions.”132
133.The Law Society of Scotland suggested a number of possible levels of involvement for the devolved institutions:
(a)“requiring the consent of the devolved administrations to any UK negotiated trade position;
(b)normally requiring the consent of the devolved administrations, but the UK Government not being bound to obtain such consent;
(c)having a procedural structure for the devolved administrations’ involvement similar to that in the European Union (Withdrawal) Act 2018 for “common frameworks” (i.e. formal consent by the devolved administrations would not be required but a procedure would be set out to ensure involvement in the process);
(d)as a minimum, and without requiring the consent of the devolved legislatures, allowing the devolved legislatures and administrations access to documents, policies etc. and allowing them to have a scrutiny and comment role.”133
134.We also heard examples of how other countries balance the interests and involvement of sub-state legislatures and executives in treaty-making. Dr Sylvia de Mars, Senior Lecturer in Law at the University of Newcastle, explained that in Germany:
“The German federal parliaments have input into German trade policy but only via the central parliament. They handle their federalism in a way that is highly compatible with how the EU has ordinarily dealt with member states’ own affairs. In effect, the central parliament has said, ‘We will take care of this. We will negotiate with our federal parliaments as the central parliament. We will take their opinions on board and reflect them in the German overall position’. That is probably an easier comparator for how the UK might wish to engage in trade negotiations in future in the light of devolved government than, say, Wallonia. That would be a rather big change from the amount of power which the devolved regions have had to date.”134
135.The Trade Justice Movement said that in Canada the federal government “has the full power to conclude trade agreements”,135 but it cannot oblige the provincial authorities to implement treaties. Nick Dearden explained:
“it makes complete sense for the federal Government to keep the provinces on side throughout. In the recent CETA negotiations, Canada included devolved provinces in its negotiating team at every point so they could be pretty sure, when it came back, that they had a reasonable chance of getting it through.”136
As there is often a need for the provinces to implement the treaties ratified by the federal government, this has led the Province of Quebec to develop a process that requires treaties that touch upon their competence to be ratified in the National Assembly of Quebec.137 Whether this is appropriate has been subject to dispute. The federal government has not accepted these claims, and other countries do not recognise “any competence on the part of Canada’s provinces to conclude treaties.”138
136.Dr Jacques Hartmann, Reader in the School of Law, University of Dundee, gave the example of the constitutional relationship between Denmark and the Faroe Islands. As is the case in the UK, devolution in the Faroe Islands is based on a reserved powers model. However, unlike in the UK—bar areas that are exempt, including issues relating to the Danish constitution and foreign policy—“the Faroese authorities can unilaterally decide what powers are devolved and when. Presently, the Faroes enjoy full authority over numerous areas, including external trade relations.”139 This has allowed the Faroes to negotiate “several international agreements, including a special economic treaty with Iceland (the Hoyvík agreement) which established a single economic area between the parties.”140
137.David Lidington MP acknowledged that the UK Government would need to consult the appropriate devolved minister before treaty negotiations could begin:
“It is right that the UK lead Minister should give devolved Ministers an opportunity to seek to influence the UK negotiating position. That is not the same thing as saying that there has to be a veto or that we should have some sort of qualified majority voting system to establish it. I do not think that would be right.”141
138.As well as involvement in setting the UK’s negotiating position, witnesses discussed whether representatives from the devolved governments should form part of the UK Government’s negotiating team. Jack Straw said “Yes, they should. In practice, when I was Lord Chancellor, there were certainly justice and home affairs negotiations within the EU where the Justice Minister from Scotland sat alongside me. I thought that was entirely right.”142
139.David Lidington MP said that this was also his experience while Europe Minister:
“I remember going over to Brussels on ministerial business of my own and overlapping with the big annual fisheries meeting in December; about 30 people were crowded into the UK delegation room in the Justus Lipsius building, because all the devolveds were there in force. It depends on how many seats are available in the ministerial room, but at times devolved Ministers and officials have been in the room, if not formally at the table with the UK nameplate, and they have been able to talk to the Minister in the chair or to pass notes and see what is going on there.”143
140.As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence.
141.The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations. It is also likely that other countries participating in negotiations will seek to ensure that any new treaty will be implemented fully throughout the UK. The same logic applies to representatives from the devolved governments forming part of the UK Government’s team in relevant negotiations.
Inter-governmental relations
142.The involvement of the devolved governments in treaty-making will rely on effective inter-governmental structures, processes and relationships. We raised concerns about the efficacy of inter-governmental mechanisms in our reports on Inter-governmental relations in the United Kingdom and The Union and devolution.144
143.As part of this inquiry, we again heard concerns that the Joint Ministerial Committee (JMC) and its sub-committees were not functioning adequately. Mick Antoniw AM said that both the structure of the JMC and a lack of support from the UK Government were causing difficulties, particularly in the context of Brexit:
“The structure is prone to not working properly. It is not designed to cope with the constitutional requirements that exist at the government level. It is also very much the case that all the promises that were made that there would be engagement and consultation have not been delivered. For example, the First Ministers of Wales and Scotland got to see the draft Brexit agreement only the night before it was published. The engagement before that was limited. There has been a real issue within the UK Government in understanding the importance of that engagement process. To date, there is considerable dissatisfaction on the Welsh side that that has ever been complied with in spirit, let alone in practice.”145
144.The Scottish Government also said that the inter-governmental mechanisms were not working:
“For some considerable time, it has been clear that the MoU [memorandum of understanding] and Concordats are not fit for purpose. Before the June 2016 referendum, discussions had taken place between the administrations on how to update the MoU and the structures for inter-governmental consultation and co-operation. Ultimately, Ministers from the different governments and executives could not reach agreement on the best way to update the arrangements, however it remains clear that significant reform is required. Indeed the consensus from academics, think tanks, independent Commissions and Parliamentary Committees is that the current intergovernmental system is not working and there is an urgent need for reform.”146
145.David Lidington MP pointed to the ongoing review of inter-governmental relations and said that “it is going constructively. Like a lot else in government, the sheer administrative as well as legislative workload involved in Brexit means that it is probably going more slowly than one might otherwise wish.”147 Mr Lidington also acknowledged that there had been tension between the UK and devolved governments:
“There is no hiding the fact that there have been some differences and disagreements. I am not here to make party-political points, but the difference has been sharpest with the Scottish Government. In part, that reflects a political difference between a unionist Government in London and a nationalist Government in Holyrood, with different strategic and constitutional objectives.”148
146.One specific concern was the lack of an effective dispute resolution mechanism for when disagreements arose between the UK and devolved governments, particularly in relation to Brexit. Mick Antoniw AM said that there was “no mechanism within the withdrawal agreement for the involvement of devolved institutions in dispute resolution. The process is dependent on the good will of the UK Government. Unfortunately, that good will cannot be relied on effectively.”149
147.David Lidington MP told us that the Government is “looking at dispute resolution mechanisms as part of the inter-governmental review”, because of the particular issues that arise out of the repatriation of competences and the need to develop UK-wide common frameworks. In the interim, Mr Lidington said: “The default position is that you have to go back to what the devolution Acts say about where competence and the right to decide ultimately lie, but you buttress that legal underpinning with conventions, memorandums of understanding and habits of good practice.”150
148.In its recent paper on the Process for making free trade agreements after the United Kingdom has left the European Union, the Government said it would seek to form a new Ministerial Forum for international trade:
“This will ensure there is a regular and formal structure to support discussion and engagement between the UK Government and the devolved administrations on trade agreements. The operational arrangements for the frequency and terms of reference for this forum are subject to ongoing discussion with the devolved administrations. Our clear intention is that the Forum will be a flexible mechanism to enable Ministerial discussion at the key points during trade negotiations … Together, these processes will ensure that the priorities and expertise of the devolved administrations can shape and inform the development of the UK Government’s international trade policy and negotiating positions.”151
149.Inter-governmental relations have been under stress in recent years. This reflects in part the different political composition of the governments in Westminster, Edinburgh and Cardiff, and the significant additional strain of Brexit. As we have observed in our legislative scrutiny, this has manifested itself in a number of ways including disputes over legislative consent.
150.It is disappointing that the recommendations of our previous reports to address the shortcomings of inter-governmental relations have not been acted on. While some tension is inevitable where competences overlap, particularly in the politically-charged context of Brexit, if problems with the inter-governmental machinery had been addressed at an earlier stage, some of them might have been ameliorated.
151.We welcome the review of the Memorandum of Understanding on inter-governmental relations and the operation of Joint Ministerial Committee structures. It is essential that agreement can be reached on its future operation, including its dispute resolution mechanism, in order to strengthen working relationships and provide a basis for cross-government working, including the negotiation and implementation of treaties. To this end, we also welcome the announcement of a new Ministerial Forum for international trade.
Treaties and the devolved legislatures
152.In Chapter 4 we recommended that the UK Parliament should scrutinise the Government’s treaty actions rather than participate in treaty-negotiations. It will be up to the devolved legislatures to consider what scrutiny they wish to undertake in relation to treaties, though if ministers of the devolved governments are participating in negotiations there will be an opportunity for parliamentarians to scrutinise their actions through existing mechanisms.
153.Some of our witnesses suggested that consent of the devolved legislatures to treaties that affect devolved issues should be sought prior to ratification. Dr Sam Fowles suggested an active role for the devolved legislatures, arguing that “where the treaty impacts on areas of devolved competence the draft must be laid before the devolved legislatures and cannot be ratified unless those legislatures give consent according to their own procedures.”152 Such a prescriptive innovation would go considerably further than the Sewel convention, whereby Parliament will not normally legislate with regard to devolved matters without the consent of the devolved legislatures.
154.Requiring the consent of the devolved legislatures would be similar to Belgium’s federal model, where the consent of its sub-state parliaments is required prior to ratification. Dr Dermot Hodson, Birkbeck College, and Professor Imelda Maher, University College Dublin, observed: “Belgium’s federal approach sometimes impedes treaty making, as occurred in October 2016 when the Parliament of the Walloon Region withheld its consent for the EU–Canada Comprehensive Economic and Trade Agreement (CETA) shortly before this agreement was due to be signed.”153
155. David Lidington MP did not consider it appropriate to require the consent of the devolved legislatures to treaties:
“I do not see how you can apply [the] Sewel [convention] to treaties. The devolution Acts are clear that international relations are the responsibility of the UK Government and Parliament, and the Sewel convention applies to legislation but not to the negotiation of treaties. Obviously, when a treaty requires implementing legislation that touches on a devolved competence, [the] Sewel [convention] kicks in and, in those circumstances, we would need to seek a legislative consent motion in the usual way. Ultimately, it is a matter for the UK Parliament to decide what should happen. That is probably the best mechanism to rely on. At the moment, I am not tempted to try to invent some new system for treaties.”154
156.It is essential that the devolved governments are effectively involved in treaty negotiations. This should ensure that devolved competences are respected and that the devolved legislatures are able to undertake meaningful scrutiny of the treaty actions that will affect them, as the impact in some policy areas could be significant.
124 Our inquiry concerned the role of the UK Parliament and devolved institutions, and we have therefore not examined in detail, or drawn conclusions about, the roles of the legislatures and governments of either the Overseas Territories or Crown Dependencies in the scrutiny of treaties which affect those territories, whether they are negotiated by the UK Government or negotiated by the territories concerned under entrustment arrangements. We are, however, grateful for the evidence from HM Government of Gibraltar and welcome their report of meaningful and productive consultation with the UK Government on treaty-making (PST0027).
125 Written evidence from Jill Barrett, Queen Mary, University of London, Eirik Bjorge, Bristol University, Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library (PST0020)
126 Cabinet Office, Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, the Scottish Ministers, The Welsh Ministers, and the Northern Ireland Executive Committee, (1 October 2012), p 43: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf [accessed 6 March 2019]
127 Ibid.
128 Written evidence from Jill Barrett, Queen Mary, University of London, Eirik Bjorge, Bristol University, Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library (PST0020)
130 Written evidence from Bruce Crawford MSP on behalf of the Finance and Constitution Committee of the Scottish Parliament (PST0019)
137 Government of Quebec, ‘Agreements and Conventions: Participation by Quebec in international agreements’: http://www.mrif.gouv.qc.ca/en/relations-du-quebec/organisations-et-forums/organisations-internationales/accords-et-traites [accessed 6 March 2019]
138 Professor Joanna Harrington, ‘Scrutiny and Approval: The Role for Westminster-style Parliaments in Treaty-Making,’ International & Comparative Law Quarterly, vol 55, issue 1 (2006) pp 121–160: https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/scrutiny-and-approval-the-role-for-westminsterstyle-parliaments-in-treatymaking/CD668AF0A385D6E2477A4716DC298FB5 [accessed 6 March 2019]
140 Ibid.
144 Constitution Committee, Inter-governmental relations in the United Kingdom (11th Report, Session 2014–15, HL Paper 146); Constitution Committee, The Union and devolution (10th Report, Session 2015–16, HL Paper 149)
148 Ibid.
151 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 6 March 2019]