Public Administration and Constitutional Affairs Committee 

Oral evidence: Devolution and Exiting the EU, HC 484

Tuesday 23 January 2018

Ordered by the House of Commons to be published on 23 January 2018.

Watch the meeting 

Members present: Mr Bernard Jenkin (Chair); Ronnie Cowan; Paul Flynn; Mr Marcus Fysh; Kelvin Hopkins; Dr Rupa Huq; Mr David Jones.

Questions 122 - 184

Witnesses

I: Professor James Mitchell, Professor of Public Policy, Academy of Government, Edinburgh University; Professor Richard Wyn Jones, Director of Wales Governance Centre, Cardiff University; Professor Gordon Anthony, Professor in Law, The Senator George J Mitchell Institute for Global Peace, Security and Justice.

Examination of Witnesses

Witnesses: Professor James Mitchell, Professor Richard Wyn Jones and Professor Gordon Anthony.

Q122       Chair:  Can I welcome our three witnesses to this session on devolution and exiting the EU?  Can I ask each of you to identify yourselves for the record, please?

Professor Wyn Jones: My name is Richard Wyn Jones.  Good morning.

Professor Anthony: Good morning.  I am Professor Gordon Anthony from the School of Law in Queen’s University Belfast.

Professor Mitchell: I am Professor James Mitchell from Edinburgh University Academy of Government.

Q123       Chair: I am afraid you are all what we might call the usual suspects for a Select Committee hearing of this nature, but nevertheless we are very much looking forward to being updated on your latest thinking now that the withdrawal Bill has completed its passage through the Commons.  It is for the other place to resolve the issues about devolution and exiting the EU that have not yet been resolved.  We have got a number of questions, which we will try to keep short.  Please keep your answers fairly crisp and short; you will be able to say what you want to say, but if it goes on too long I will have to truncate.

These devolutionary settlements were really framed in the context of our EU membership.  The EU’s internal constitution will suddenly look very different upon our departure from the EU.  How has the UK constitution changed since we entered the common market in 1973, especially with regard to devolution?  What are the salient points we need to be cognisant of?

Professor Mitchell: The fundamental point that you make with regard to the devolution settlement being made with an understanding that we would remain in the EU is hugely important.  In fact, if you go back to when we joined the EU in 1973, there were debates on devolution.  It is very significant that at that time there was very little appreciation of the likely impact of EEC membership.  The Royal Commission on the Constitution reported in November 1973, and its main report says little, if anything, about EEC membership.  It was not assumed at that stage that devolution would have any great impact. 

However, a minority report, written by Lord Crowther-Hunt and Professor Alan Peacock, contains a significant chapter—chapter three—on the EEC.  They were amongst the few who recognised that devolution would interact with EEC membership at that time, to a considerable extent.  They warned that many things that were supposed to be devolved would come under the ambit of the EEC, even at that time in 1973.  They also stressed something else that was not fully appreciated, and that is that the competences of the EEC were not static; they would develop over time.

Answering your question in a roundabout kind of way, I would argue that back then there was not a great deal of attention—certainly insufficient attention—paid to the EEC.  That was also the case in the 1990s, in the lead‑up to the 1998 Scotland Act and the 1998 Government of Wales Act.  What is certainly the case is that membership has had a very significant impact on the constitution and the system of government, particularly on Parliament.  It has also impacted on each branch of the constitution: on the executive, on Whitehall, and on the judiciary.  There has been a judicialisation of politics that EEC membership has contributed to.

Over the course of time, EEC and EU membership has had a very significant impact, not least in terms of citizenship and the relationship between the individual and the state.  We are in a very different world now than that which we were back when we first joined the European community, and even back when devolution was established.  We have fudged and avoided confronting some of these issues, and we are now having to confront these issues now because of Brexit.

Professor Anthony: I will talk about Northern Ireland, and start with the obvious comment that Northern Ireland is different.  When membership of the EEC was achieved, the conflict in Northern Ireland was at its most intensive.  By the time we got to 1990 and devolution, the European Union provided a very important political backdrop to what became the Belfast agreement.  That was very much the approach of John Hume, in terms of the potential of European Union membership.  One of the interesting things about the Belfast agreement, when one looks at it, is that the European Union is hardly mentioned in it at all.  That is because it was an assumed, ongoing reality at the time of the Belfast agreement.  EU membership is essentially laced through the Belfast agreement. 

I would highlight three points.  One is the idea of citizenship.  One of the achievements of the Belfast agreement was to give very, very concrete constitutional recognition to the equal legitimacy of Irish and/or British citizenship.  That was complemented by ideas of European citizenship. The second one was the protection of rights.  That was not with the charter because the Charter of Fundamental Rights did not exist, but in terms of anti-discrimination measures.  The third thing was in relation to north-south co-operation.  The Belfast agreement was about a whole series of compromises and institutional relationships.  A key part of that is north-south co-operation, and that is one of the areas where the obligation of EU membership is expressly referred to in the importance of co-operation.  Our devolution settlement in Northern Ireland has taken EU membership as an assumed and ongoing reality.  Of course, Brexit has challenged that.

Q124       Chair: Obviously as members of the EU we are obliged to co-operate with our fellow member states.  What is the evidence that there will be any less sense of moral obligation to co-operate with the Republic of Ireland after we have left the EU?

Professor Anthony: The answer to that is now the phase 1 agreement.  In the second part about Ireland and Northern Ireland there is an express commitment to continue that co-operation.  I accept your point about it being a moral obligation, but it is now, depending on the final status of the phase 1 agreement, included there.

Q125       Chair: But to what extent was that necessary?  Obviously it is comforting to have an expression of an undertaking to co-operate, but to what extent was that ever in doubt?  This was surely a false fear.

Professor Anthony: It might have been a false fear for some people.  For other people it was a genuine concern.

Professor Wyn Jones: I would widen the optic a little bit.  You mentioned 1973.  It is worth thinking about what happened in 1975 and 1979, with the referendums.  Lots of what we have here is tension between different conceptions of sovereignty, and this is one of the things that devolution has fundamentally changed.  What the referendums did—particularly in 1979—is introduced popular sovereignty into the mix.  There is an interesting paradox, in that it was supporters of traditional parliamentary sovereignty who wanted a referendum to try to stop devolution, and succeeded, of course, in 1979. 

What we then have is this tension in the UK constitution between these traditional notions of parliamentary sovereignty and the reality, after 1997, of legislatures and Governments being established in Cardiff and London.  Northern Ireland is a bit different, but let us stick to Scotland and Wales.  They are underpinned by a popular mandate that was reinforced in Wales in 2011.  What we are seeing in all the negotiations between London, Cardiff and Edinburgh are fundamentally different views about the nature of the UK.  In Cardiff and Edinburgh there is a view, underpinned by a popular mandate, that the devolved Acts are constitutional Acts that the UK Government should not be changing willy-nilly.  We have legitimacy here.  On the UK side what we see in the withdrawal Bill and what we have heard is a throwback to an old notion of parliamentary sovereignty, paradoxically underpinned by the Brexit referendum result.  These things mix through each other, and so we have a fundamentally different conception of the UK constitution at work.  Lots of the tensions we see are out-working of these different conceptions.

Q126       Chair: I appreciate there are different conceptions, but some of these conceptions are more legitimate than others.  If Scotland had voted to leave the United Kingdom, that would have been an expression of the sovereign will of the Scottish people.  The Scottish people voted to remain in the United Kingdom, and therefore they are subject to a sovereign UK constitution.

Professor Wyn Jones: That is the tension.  Your position is an absolute: you are either independent or you accept the sovereignty of Westminster.  The devolutionist view in Scotland and Wales is, “We do not want to make that choice”.  In the Scottish case, the vow suggested that there was a third way.  That absolutist notion that you put forward is not one that is accepted by the Welsh Government or by devolutionists in Scotland.

Chair: I would accept that the sovereignty of Westminster is now qualified.  It is subject to the ongoing consent of the Scottish and Welsh people.  For the time being it is a legal fact that the Westminster Parliament can make any law.

Ronnie Cowan: We are talking about the feeling of people in Scotland who voted to leave, and so on and so forth; I do not want to go over that in too much detail today, but at the time it was a fact that the people of Scotland were sold that concept under the premise of “leading, not leaving”—that was the phrase, if I remember rightly, that Gordon Brown used at the time—and then when we ask to lead, we are told, “No, get back in your sandbox.  You voted to stay with us, so we will do the leading for you”.  That, to me, is part of the issue we have now.

Professor Wyn Jones: You said, Chair, that parliamentary sovereignty is qualified.  The issue is what “qualification” means.  There is a lot of space in there for dispute about what that precisely means.  The Welsh Government position is that they accept that Brexit is going to happen but they also say that does not mean that devolution in their terms gets rolled back.  There is an argument in that space, and there are different conceptions of legitimacy and sovereignty competing with each other, which have not been resolved.  They have not even been properly discussed.

Q127       Mr Jones: Professor Mitchell, you used an expression, “the judicialisation of politics”.  I wonder if you could briefly expand on that, because I think that is a matter of interest to the Committee at the moment.

Professor Mitchell: Professor Anthony is better qualified than me, but essentially the role the judiciary is playing in our politics is now greater than it would have been prior to EEC membership.  I do not think it is entirely due to membership of the EEC; there have been other developments.

I am not saying this is a bad thing.  It is quite common across democracies that the judiciary will play a part, not least in adjudicating between different branches of the constitution, whether that is between the executive and the legislature or indeed between Westminster and the devolved polities.  The institutional manifestation of that would be the Supreme Court. 

It is also not just between institutions; the judiciary’s role in citizenship has changed.  I do not want to overstate the EU’s role; it has been significant, but it has not been alone.  Going back to the 1970s, the judiciary was much more reluctant to intervene than it is now.  That has been a gradual process. 

I am sitting beside someone who is much better qualified than I am, but it is fairly well accepted that there has been a gradual judicialisation in the UK.  It is not dominant, by any means.

Chair: It is interesting you would call it the judicialisation of politics.  I would call it the politicisation of the judiciary.

Q128       Mr Jones: That was exactly the point I was about to make.  Is the Supreme Court also a political court?

Professor Mitchell: Yes, I think so.  I do not want to get into definitions of what we mean by “political” and “judicialisation”, but the degree of intervention has certainly increased.  I do not think that is necessarily a bad thing.  It may be for some, but not for everyone.  I am quite comfortable with it, but I would fully acknowledge that that process has been underway.

Q129       Paul Flynn: We saw in Wales the challenges by the Attorney General around five Welsh laws, all of which the Attorney General lost.  It reinforced the idea that devolution to Wales was what Gillian Clarke described as a “grudged gift”.  It was given but it was likely to be taken back at any moment. 

There has been just one referendum on this since the 1980s.  In Wales there have been three referendums, which out-trump the one referendum we had on the basis of lies from both sides.  Brexit has done something remarkable in the history of Wales, in united four parties together in believing that this is a power grab.  What is your view on this?  Is it not inevitable that there is going to be a great deal of friction between the Conservative Government and the devolved Parliaments and Assemblies, to block Brexit as far as possible?

Professor Wyn Jones: I would come back to what I was saying about the fundamentally different conceptions of the nature of the states.  You are right in saying that we have had three devolution-related referendums in Wales.  The institutions that we have are underpinned by a popular mandate.  The Welsh Government think that this matters greatly.  I acknowledge that the UK Government are faced with a very difficult process.  If you are pursuing Brexit then it is a complicated legal process, but the view from the Welsh Government’s side is also my view: that should not mean riding roughshod over the constitution of Wales, as expressed in the devolution legislation.

Q130       Paul Flynn: There are some old lags, from Kilbrandon and some of the other reports that have come out over the years, who are in the Lords now, who will certainly be challenging the idea that they should surrender the gains that have been made in devolution without anything being spelled out as to what advantages will come of it.  We repeatedly hear the Government say, “You get extra powers in devolution”, but they are not spelled out anywhere in the withdrawal Bill or in the details that have come out.  Are the Government going on a path where there is going to be an inevitable challenge, from both Scotland and Northern Ireland, to what is an awful mess, and one that is not defined and defies the last two referendums that were held in Wales.

Professor Wyn Jones: I do think it is surprising that we are in a situation where, certainly from the outside, it looks as if the process of negotiation, between Edinburgh and Cardiff on the one hand and London on the other, has not been well handled.  I am at a loss to understand why we have not seen a revised version of Clause 11. I do not understand the statecraft that which underpins the situation we have got to.  You will be more aware than most that Mark Drakeford compared the JMC to St Fagan Community Council in terms of its level of competence and organisation.  That is not a healthy situation.

Professor Mitchell: You mentioned the referendum.  One of the big changes since the 1970s that I did not mention has been the English use of referendums in the UK.  In terms of popular sovereignty, I have issues around the whole concept of sovereignty.  I do not think it is at all helpful.  It is a term that tends to polarise, and it is better to conceive of these matters as relationships.  Once we start conceiving relationships then we can avoid that.  That is not to criticise Richard on that point.

With regard to referendums, we have developed this practice of having referendums but in a very inconsistent way.  In Wales you have had referendums on extending power, but in Scotland we have seen extensions to the powers of the devolution so-called settlement without a referendum.  There has been utter inconsistency in the use of referendums.  We need to consider more carefully when referendums should be used; too often they are used when there is a big problem that we do not know what to do with, or in response to pressure.  That may be valid, but the inconsistency does not look like good constitutional politics.  We need to address that. 

As I say, I am not convinced that it is really popular sovereignty because ultimately the decisions could theoretically be ignored, though politically that would be both unwise and very unlikely.  We could do with some consideration of the role of referendums in the future.

Q131       Chair: Which referendums should not have been held?

Professor Wyn Jones: The 2011 referendum in Wales is an obvious example, on a choice between Part 3 and Part 4 of the Government of Wales Act 2006—two different forms of primary lawmaking.  That is a prime example of a referendum that was about getting through a problem within the Labour Party, frankly, rather than anything else.

Q132       Paul Flynn: The professor is exactly right. Having been through this, having read through the history, and having given evidence to the Kilbrandon Report in 1969, I would certainly say the differences are to do with differences in Labour Party politics and how power-retentive groups were, and how reluctant people are to part with power; if they have parted with it they will probably try to grab it back.  That is the story, and it applies to a different extent in the three nations.  It has been a long, painful road in devolution, and that is why people want to hang onto it.

Professor Mitchell: Can I suggest it is perhaps not that there should not have been but there may well have been a need for other referendums.  If you are having referendums on extending powers to Wales then why was there no referendum on Calman and the legislation there?  My point is that there is inconsistency; I am not arguing for or against referendums, but there has been inconsistency, which I do not think is good constitutional politics.

Q133       Mr Jones: May I mention another inconsistency?  In Scotland there were two referendums in 1997, one on devolution and one on tax-bearing powers.  In Wales there was never a referendum on tax-bearing powers.  Again, to me that seems to be a significant inconsistency.

Professor Mitchell: In many respects, the second question in 1997 made little sense other than for political reasons.  It was because in the run-up to the election the Conservatives were making a great deal of the so-called tartan tax.  It was a way of responding to that and promising people there would be a second vote: a vote on the principle of devolution and a vote on a detail; it makes little sense.  In fact, the analysis that colleagues and I did at the time of public opinion suggested that people interpreted it in a completely different way.  If they were enthusiastic about devolution they voted “yes” and “yes”.  If they liked the idea but less enthusiastically, they voted “yes” to the principle and “no” to tax-bearing powers.  It was very little to do with tax-bearing powers, which again raises the question as to when you should use referendums and how you should do so. 

Absolutely there is an inconsistency.  I do not think it made sense in the Scottish case.  Should there have been a second question in Wales?  Again, it is this lack of consistency and this party-political dimension to why we have referendums.  I do not want to get into a battle as to which ones should or should not have been held, but it is the inconsistency that concerns me.

Q134       Chair: Just coming back to the UK’s departure from the EU, what is the actual indication of leaving the European Union on the configuration of the powers held by the devolved policies?

Professor Anthony: In the Northern Ireland context and in the Scottish and Welsh contexts, it is potentially removing EU laws as a constraint down the line, so retained EU law will remain as the constraint.

Q135       Chair: So all the withdrawal Bill is doing is replacing an EU constraint with a UK constraint.

Professor Anthony: Yes.

Q136       Chair: We are replicating that.  It is not exactly a power grab, is it?

Professor Anthony: That is where the argument has been about Clause 11.

Q137       Chair: But how is it a power grab when those restraints already exist?

Professor Anthony: Because they are in areas of devolved competence.  The argument against the power grab is that if they were in areas of devolved competence on repatriation then they should automatically revert to the devolved levels.

Q138       Chair: The UK is grabbing the powers back from the EU, not grabbing the powers from the Scottish Assembly or the Welsh Assembly.

Professor Anthony: The Chair will know that the arguments have been put forward by the Scots and the Welsh. In Northern Ireland because we do not have a sitting Assembly or Executive, the arguments have not been made in the same way.

Q139       Chair: What are the consequences for the inter-institutional relations as a result of this new dynamic that is being set up as we leave the EU?

Professor Anthony: I will not be evasive, but it might be better if one of the Scottish or Welsh answered it because the institutions are in place there.  There is no meaningful answer I can give.

Chair: We earnestly hope that the institutions in Northern Ireland will soon be in place.

Professor Mitchell: One of the interesting things is that the institutional structures for inter-governmental relations with regard to devolution have varied in how useful they have been.  The Joint Ministerial Committee that looks at European affairs has been the most active, and arguably the most successful, with the devolved institutions and Government here, interacting regularly and pretty well—though there have of course been disputes—much more so than any of the other Joint Ministerial Committees.

There is a real question as to what will occur with the inter‑institutional relationships post Brexit.  At the moment these have worked relatively well, relative to the others.  Will we have Joint Ministerial Committees?  Presumably more than one; we will have to on all these different matters that are returning.  Will those relations follow the very good pattern we have seen with JMC Europe, or will it be with regard to the other JMCs?  Some care and attention is going to have to be paid to inter‑governmental relations with respect to those areas.  I would like to think—but I am not too hopeful—that it will largely follow that JMC Europe pattern of good, regular and fairly constructive meetings.

Professor Wyn Jones: Can I just come back to your initial question about the power grab and the scepticism you have expressed as to whether this was a term to use.  I am not particular wedded to the term “power grab”, but I do think it is important to emphasise that one of the reasons why Clause 11, in particular, is regarded as objectionable amongst Welsh devolutionists is the whole context of constitutional churn that we have had in Wales since the 1997 referendum.  I will not go through the history because we could be here for a very long time, but we have had constant changes.  The proposals that were voted on in the referendum were changed as the legislation went through Parliament.  The 1998 Act had to be unravelled de facto very quickly.  We had a new Act in 2006, with two different lawmaking systems.  We now have the Wales Act 2007, which is coming in in April of this year.  As a result of Brexit, we are going to see another change coming through.

Of course, there has been a move to a reserved powers model.  We are finally getting to a reserved powers model, and we see the UK Government effectively reintroducing a conferred powers model, where they will decide which bits of the powers returning from Brussels will be conferred on the Welsh Government.  That is in the context of trying to get to a reserved powers model for all these years, which is finally coming in on April 1.  In the context of this constant churn and change, that looks one‑sided and objectionable.  We finally thought we had got somewhere and it is being taken away.  I am not particularly wedded to the term “power grab”, but I think it is important to emphasise the context in which this is happening.

Chair:  I think you have explained that very fully and in a way that I personally rather accept.

Q140       Paul Flynn: In what ways do, as the UK Government suggest, the current devolution settlements reflect the context of EU membership? Why is this important?  You have possibly answered. If we look at a practical example of this—and I am not sure what the answer is—the Welsh Government decided on and have enacted presumed consent for organ donations, and lives have been saved as a result of it.  The UK Government have got a Bill next month, which is supported by all the main parties.  The Scots are halfway between the two; they have accepted the notion and it is going through the Scottish Parliament.  If the EU (Withdrawal) Bill gets through, will their powers be frozen?  Can they enact that?  It is a lifesaving Bill that I am sure will eventually be enacted throughout the whole of the United Kingdom.  On that issue, which is a practical one, in the powers will not be grabbed away but they will be frozen at least, if the Scottish Government cannot move on what is a worthwhile reform.

Professor Mitchell: The fundamental question is whether the withdrawal Bill is the final statement or not.  I guess the fear in Edinburgh and Cardiff is that it is the final statement.

Q141       Chair:  Even though the Government has repeatedly said it is not.

Professor Mitchell: Indeed; I accept that, but then the question is, “What is the final statement?”  So long as that is unclear, we are in this kind of no man’s land.  It will certainly mean things are held up.  It may mean in the future that relations are going to be very tricky.

I do think a lot of this comes down to the fact that we probably should have been better prepared for Brexit.  It is a statement of the way we have operated around this issue. For whatever reason, Whitehall did not do the preparations.  We are in a position where we have a limited timeframe to operate, we have a huge range of issues and we are still in the negotiation stage within the UK.  That is really a very difficult position to be in, and all sides would do well to acknowledge that as a starting point.  It would be good if we could get a clearer statement from the Government here as to where we are likely to go, without necessarily giving the detail.  I fully appreciate that lots will be around negotiations and discussions behind closed doors.  It has to be, but we could do with some clear guidelines. 

From my point of view, I thought that we would have had amendments to the Bill in the Commons.  I expected that, and, to be honest, I am surprised that has not happened.  There is deep concern that this has not happened, though it is understandable because of the nature of relations. We have problems.

Chair: I think that was all of our expectations as well, and I expressed my disappointment last week in the debate.

Q142       Dr Huq: I wanted to go further back to 1998.  I think even in the year before New Labour took power Tony Blair said, “Devolution will be like a parish council”, and that was seen as a huge gap.  In what ways has the ongoing process of devolution changed the constitutional landscape and arrangements of the UK?  Since then even Blair has said it was a mistake, so was it a parish council or a mistake?  How has it played out?

Professor Mitchell: The “parish council” comment was made during the referendum in 1997.  It was a way of trying to reassure people that the Scottish Parliament was not going to lead on to independence.  I put that in the category of political rhetoric in the context of an election or referendum, and I do not take it too seriously.  Quite clearly the existence of Scottish Parliament and the Welsh Assembly has had a significant impact.  Formally, Westminster could have abolished them; politically, that is almost unthinkable.  The only context in which that could happen is if there was pressure from in Scotland or Wales to get rid of them, unless you had a Government down here that was hell-bent on destroying the union, because that would be the consequence.

This is where I am uncomfortable with concepts such as sovereignty.  It creates an atmosphere and context in which we discuss these things in adversarial terms.  We need to move away from that.  It is about relationships, power and where power lies.  Power is divisible, contrary to the notion of sovereignty.  From a public policy point of view, we should get rid of the term “sovereignty”.  I can see a lawyer sitting beside me getting uncomfortable, but I really think it is not terribly helpful, at least in the context of political debate.  I would like to put it aside for those purposes.

Chair: I think we are confusing terms here.  Sovereignty is a fairly technical notion.  You are talking about authority.

Professor Mitchell: Yes, authority and power.

Chair: Sovereignty can only be exercised with authority.

Professor Mitchell: But the point is that the Scottish Parliament has and is able to act in significant ways.  It is not really likely to be challenged unless you want to create a major crisis.  There will of course be differences around the edges and of course you are going to have to deal with conflict; that is the nature of politics.  Democratic politics is always going to be about conflict.

Professor Anthony: Up until the moment of Brexit and up until the Miller ruling of the Supreme Court—this comes back to the judicialisation of politics—there had been a series of very important statements within the House of Lords and then the Supreme Court that moved towards an idea of divided sovereignty.  There had been a hint in the Jackson case that sovereignty was shared, to use the idea of relationships and sharing.  There was a hint.  Lord Steyn famously mentioned it in relation to the Scotland Act.  Mr Flynn mentioned one of the Welsh references from the Supreme Court.  I think it was the Welsh asbestos Bill.  Lord Thomas gave a judgment that was really a common-law blueprint for an idea of nascent federalism. 

Much more than parish councils, it was something that there was a very pronounced and far-reaching debate about, in terms of how far sovereignty was not fracturing but being shared and dissipating throughout the United Kingdom.  In Northern Ireland it has particular resonance because the consent principle keeps Northern Ireland in the United Kingdom, with a possibility of Irish unification.  The change was very fundamental and far-reaching.  In the Miller case, the Supreme Court said, “Let us go back to our starting point in 1972 with Dicean sovereignty.”

Q143       Mr Jones: The question I had, which you have introduced nicely, is about the extent to which you would agree that sovereignty in fact has now moved in the direction of the Supreme Court in this country, and to what extent you think that will be buttressed by the provisions of Clause 5 of the European Union (Withdrawal) Bill, which of course expressly gives the Supreme Court—or courts—the power to strike down enactments, which presumably would include an enactment of Parliament?

Professor Anthony: My understanding of the Miller judgment is it is a very strong reassertion of parliamentary sovereignty.  That is how I would read it.

Q144       Mr Jones: Taking into account the provisions of Clause 5, do you think that that changes anything?

Professor Anthony: I do not.  Leaving aside the language of power-hoarding, the Miller case and the EU (Withdrawal) Bill is very much about reasserting the primacy of parliamentary sovereignty.

Q145       Mr Jones: There is a concern in this place that in fact Clause 5 is having the effect of pushing sovereignty in the direction of the Supreme Court.

Professor Anthony: I cannot speak for the Supreme Court, but I do not think the Supreme Court is making a claim to being the final source of sovereignty or having power to determine all questions of sovereignty.  The role of Parliament is shored up by the Miller ruling.  The controversy from the devolved perspective is that in the Miller ruling the Supreme Court did not then move on with any idea of divided sovereignty or something that buttressed the Sewel convention, and that was put in the legal realm. 

Q146       Mr Jones: I would like to press the point.  I am sorry to do so, but it is good to have you here to discuss these things.  The Miller judgment obviously predated Clause 5 and the enactment in due course of the Bill.  Do you think that the enactment of Clause 5 will actually change the position as enunciated in the Miller case?

Professor Anthony: No. Let me give the honest answer.  I am going to look again at Clause 5, but my understanding is that Clause 5 is not going to have that effect.  If it did have that effect, it would be similar to the Human Rights Act, in the sense that the Human Rights Act places limitations on Parliament’s powers through the mechanism of a declaration of incompatibility.

Q147       Mr Jones: That is not provided for in Clause 5.  Clause 5 provides an explicit power for the court to strike down enactments.

Professor Anthony: Can we meet halfway?  I will look at Clause 5 on the iPad and then come back to you. 

Mr Jones: That is really appreciated.

Q148       Dr Huq: We have three different disciplines here: public policy, law and political science.  I am an ex-academic myself, so I am pleased to see three academics; I do not miss the research exercise.  We have not heard from Professor Wyn Jones.

Professor Wyn Jones: James explained the context around Tony Blair’s “parish council” jibe; I think “jibe” is the right word.  In the Welsh case, when the National Assembly first met it had very constrained secondary lawmaking powers.

Q149       Dr Huq: And the referendum was much closer.

Professor Wyn Jones: It was very close; there were 6,721 votes in it.  What we have seen since then is a process of solidification of public support for the principle of devolution.  Notwithstanding the performance of devolved Governments, et cetera, we are now in a position where around 15% of the Welsh electorate would support getting rid of devolution.  Devolution is clearly the settled will of the Welsh population, but there is a real paradox.  On the one hand, we have seen a solidification of public support, but constitutionally—I described the process and I am not going to go back there because the Chair will admonish me—it has been churn and constant change.  I do not think anybody thinks that the 2017 Act is the final word either.  We have not had a settlement; we have had a series of unstable dispensations.  The direction of travel has been in the direction of a powerful executive being slowly matched by a more powerful legislature.  The “parish council” language does not make any sense.

To go back to the point I started off the session with, this is now underpinned by two referendum majorities.  The first one was very narrow and the second one was much more generous.  There is a much more substantial set of institutions than was the case back in 1999 when the National Assembly first met.

Q150       Dr Huq: The next one is about future-gazing.  What are the implications of these constitutional changes for how the UK will operate on the other side, after we leave the EU?  The different constituent parts voted differently.

Professor Mitchell: That is a really difficult question to answer, and it will depend on how those powers are allocated.  Crucially there is the potential for other disputes and disagreement, which I do not think is necessarily a bad thing.  In fact, if there is no disagreement or difference then what is the point of devolution?  The key is how it is handled.  Have we got the institutions to handle differences?  We have muddled through since the inception of devolution.  We have got away with it but that may become more and more difficult.  Context will be very important, not least in terms of the powers I mentioned but also in the fiscal context, the state of the economy, the state of public finances and all the rest of it.  The party-political context will be important.  All these factors will play into it.  We are moving into a period where some of these tensions will increase.  The question is, therefore, about how we handle it and whether the current arrangements are fit for purpose.  I am not convinced that they are.

Professor Anthony: In terms of the future configuration of the United Kingdom, from the Northern Ireland perspective, the real issue is going to be implementation of the phase 1 agreement, which on the face of the agreement is to happen irrespective of whether there is a final agreement.  What is very interesting for Northern Ireland is that the phase 1 agreement uses classic compromise language.

Dr Huq: A fudge.

Professor Anthony: Potentially, yes.  It is classic compromise language.  On one reading—this phrase is not used particularly—there are common frameworks on the island of Ireland but also there are common frameworks east‑west.  That is going to be the particular challenge or opportunity, depending on which way one wants to represent it in the context of Northern Ireland—this almost Janus‑faced position within the United Kingdom and on the island of Ireland.

Professor Wyn Jones: My view is that a great deal depends on how the UK Government, and to an extent the Parliament here, decide to proceed in terms of its relationship with the devolveds.  Contrary to my good friend James Mitchell, I think the language of sovereignty is extremely helpful here.  If the UK Government want to reassert parliamentary sovereignty in a kind of traditionalist or 1972 understanding of that, there will be constant conflict with the devolved level.  It seems to me to be extremely poor statecraft, but if that is the road the UK Government want to go down, which is to say a reassertion of traditional notions of parliamentary sovereignty—“You did not vote for independence so you are stuck with it, guys”—then there will be conflict.

Q151       Dr Huq: I have a final question.  The terms of this inquiry are devolution and exiting the EU.  As a London MP, I get told all the time, whenever I try to ask all sorts of things, “It is a devolved issue.  We cannot deal with that here”. Transport, housing and all those sorts of things are devolved in London.  I know Sadiq Khan, who was in Ealing, in my seat, on Saturday, keeps banging on about how London should have a special seat at the table because of financial services.  I have a lot of constituents who work in the City, and they are worried about EU passporting rights.  It is a big driver of our economy.  Is there a case for London being treated especially or having a seat at the table in particular—or seceding?

Professor Wyn Jones: London as a sovereign.

Dr Huq: That is not Labour policy.

Professor Wyn Jones: I would not hazard an opinion on London.  My accent is a giveaway.  I am not really qualified to speak.  But I would say that the position of England within the UK constitution is the elephant in the room that we constantly ignore.

It seems to me that a lot of what was driving the Brexit votes was a kind of Anglo‑British nationalism and a sense in England that England is being ignored within the UK and unfairly treated within the UK.  I have had the privilege of appearing before this Committee in the past to talk about England, but it remains the big issue in the UK constitution that we do not talk about but that is germane to all of this debate.

Q152       Mr Jones: Could I gently say that Wales voted more positively to leave the European Union than England did?

Professor Wyn Jones: You may say this, but, as I am sure you are aware, there were big differences within Wales relating to national identity in terms of the referendum votes.  What we saw in England was that those people who feel British but not English voted to remain; Englishness was a key driver of “leave” in England.  In Scotland and Wales, it was Britishness that was related to the vote to leave.

Mr Jones: So people felt more British than Welsh.

Professor Wyn Jones: No, people who feel British in Wales voted to leave.  In England, Britishness without English identity was associated with “leave”, very strongly.  There was a very strong relationship.  Those same views associated with Englishness in England were associated with Britishness in Wales and Scotland.

Chair: This is a slightly fruitless discussion. 

Professor Wyn Jones: It may well be, and I may not be explaining this very well. 

Chair: They voted to take back control over their law, borders and money.  That is why this issue of—

Professor Wyn Jones: I come back to the point that Englishness and understanding the politics of Englishness is something that is very important.  This is something that the political system generally finds extremely difficult to talk about.

Chair: Maybe I am a living example of that difficulty. 

Q153       Dr Huq: But London is different to England.  It voted in a different way in my seat, for example. 

Professor Mitchell: London is really an interesting case.  Constitutionally, it is in a very weak position with it having that voice, but politically and economically it is in a very strong position.  The London interest is not lost sight of, but the English question and the asymmetries are key.

Chair: We must press on.  The London point is well taken, and I am glad that has been put on the table.

Q154       Mr Jones: Taking into account the constitutional changes in Wales that will be happening in April, what will then be the principle similarities and differences between the various devolution settlements in the UK?

Professor Mitchell: There is still a great deal of asymmetry.  Clearly, there are some similarities now emerging for sure, but there are still significant asymmetries.  The biggest asymmetry is with regard to England.  We are well aware of the problems of asymmetry, but the asymmetry reflects the asymmetrical demands in the different component parts of the United Kingdom.  One could argue that the nature of the UK today, with all of its asymmetries and suchlike, makes perfect sense.  It has never been a symmetrical state.  We can overstate that.  Yes, we are looking more similar, but there are still significant differences.

Q155       Mr Jones: I actually just wanted a description of the extent to which there will remain asymmetry after April.

Professor Wyn Jones: Very simply, the main differences between Scotland and Wales will revolve around the fact there is an England and Wales justice system and legal jurisdiction.  There is asymmetry there.

The elephant in the room is England, where you have these fused Anglo‑UK institutions.  I was walking down Whitehall earlier.  I did not see an English flag, yet the institutions here are the Government of England as well as the Government of the UK.  The biggest asymmetry of all is around England, but as between Scotland and Wales it revolves around the justice and legal system. 

Professor Anthony: I would not really have anything to add to the comments that I made.  In Northern Ireland, one of the main asymmetrical issues is of course the point about compulsory cross‑border institutional co‑operation.  That is the very obvious departure in Northern Ireland.

Otherwise, it would require an audit of the schedules to see specifically which powers are in place.  All three will have moved towards a reserved powers model, although Northern Ireland is probably a mix between reserved and conferred, because some powers can be conferred if the political circumstances lend themselves to it.

Q156       Mr Jones: Professor Mitchell, getting back to your answer, it strikes me that you do not necessarily think the asymmetrical nature in devolution is of itself necessarily a difficulty.  Is that fair?

Professor Mitchell: It is a difficulty but also a necessity.  There is no point in imposing devolution on England or English regions if they do not want it.  The demand for devolution in Wales has always been weaker than in Scotland.  Given the situation in Northern Ireland, it just would not make sense to have the same institutional structures that we have in Scotland or in Wales in Northern Ireland.  I think that it does make sense to have an asymmetrical constitution, but it comes with problems, without any shadow of a doubt.  I do think it is a necessity.

Q157       Mr Jones: Could you outline those problems?

Professor Mitchell: The biggest problem is in dealing with the centre and how we engage with the centre.  It does make for real difficulties in trying to get institutional arrangements that bring together the devolved Governments and central Government, in terms of the JMCs and the inter‑governmental relations.  Essentially, it results in bilateralism, so relations between London and Edinburgh, London and Cardiff and London and Belfast.  That can create difficulties.  It does mean that one of the reasons why JMC Europe has been more successful than the others is that there needs to be agreement or has needed to be some kind of agreement between the different Governments in these places before we go into Brussels and into negotiations.

Again, maybe we should not be too concerned about this.  Maybe that is the nature of the UK constitution: it is really a series of bilateral arrangements.  I have argued in a book that essentially we should understand the UK as a state of unions.  It is a series of unions that come together.  In a sense, it may not be where you would be if you were starting afresh and writing a constitution, but it is where we are.

There is a historical legacy that is hugely important in the constitution.  However it evolves, that is likely to continue to be the case.

Q158       Chair: What is the challenge that all these issues present for the future of inter-institutional arrangements within the United Kingdom?  What are the main challenges that have to be addressed?

Professor Wyn Jones: We do not have particularly well-functioning inter-institutional arrangements.  I do not know of any external observer who thinks we have a well-functioning system.

Q159       Chair: If we had a well-functioning system, what issues would it be resolving?  What structural, conceptual flaws would it be addressing?

Professor Mitchell: Can I start with a conceptual point?  This is fundamentally important.  Devolution is conceived of in the wrong terms.  It was conceived of as a form of dual government: London would have responsibility for X, Y and Z, and Edinburgh and Cardiff would have responsibility for A, B and C, as if these were separate.  From a public policy point of view, that just does not make sense.  Intergovernmental relations the world over, whether it is federal systems or local and central relations, involves an inter‑relationship.  We need to move away from this kind of dualist view of devolution to a more integrationist view of it.  Decisions made in one place will inevitably have some impact elsewhere.

If we start from that point of view and appreciate that that overlap is central, then we would start to address the questions of inter‑governmental relations, which we failed to do when we set up the devolved polities.  The JMCs and suchlike were introduced late at night in the House of Lords in discussions.  There had been no great discussion about all of this.  There had been argument for years in advance; this was going to be fundamental.  We are only now beginning to address it, partly because of Brexit.  Brexit makes it much more significant, because we are going to see these debates on the powers.  It is not just where the powers lie but how we relate to one another, hence I come back to the point I made earlier: this is all about relationships.  We have to conceive of it in terms of ongoing relationships.  If Scotland votes for independence, we will still have to have relationships; we will still have to have institutions that will manage those relationships.

I understand why others like the concept of sovereignty, but this is why, from a public policy point of view, the concept of sovereignty just worries me, because it does engender this kind of Manichean, adversarial approach to things.  It is not about where power lies absolutely; it is about how we manage those relationships and how we get good policy decisions, allowing a degree of autonomy or otherwise.

I have to say, even if Scotland were independent, with due respect to one of the Members, it will not be completely autonomous; it will not be able to do everything it wants to do.  It will still be influenced by decisions that are made here in London.  Conceptually, we could do with moving on.  That then leads into debates on the kind of institutional arrangements that we require. 

Leaving aside whether Brexit is a good or a bad thing, the JMC Europe has been good.  If we could try to replicate that and learn from that as we move forward, not allowing ourselves to move back, and have institutional arrangements that reflect what has happened in other spheres, that would be good. 

Q160       Chair: Does anybody else disagree with that?

Professor Anthony: If there is an arrangement has been put in place and if there is a dispute, what sort of arbitration mechanism is there going to be?  How do you demarcate the boundaries?  I do agree that from a policy point of view it may make things to see things more in terms of partnership, but ultimately somebody somewhere is going to have the final say.  That goes back to the dreaded “s” word—sovereignty—and which model underlies the entire architecture.  That would be central.

Professor Wyn Jones: If I may say, this is where we come back to the UK Government’s double‑hatted role as, in many ways, the Government of England but also the UK.  There is a fundamental asymmetry there.

More prosaically—and this is a point I may have made to this Committee before—one of the striking things about the period since 1997 is the fact that we have had major changes in terms of constitutional architecture in Cardiff, Edinburgh and Belfast.  Whitehall and Westminster have changed almost not at all in relation to the devolved territories.  We still have the territorial offices; we still have the Select Committees.  Every analysis of Whitehall suggests, with due respect to somebody around this table, that the territorial offices are relatively weak.  The devolved Governments try to conduct business bilaterally with UK government departments where they can.  The territorial offices could not cope with being the conduits for all of these relationships. 

There has been no fundamental addressing of the way that London institutionally organises itself in relation to the devolved Administrations and the devolved legislatures.  That is a fundamental failing and it makes the problems of asymmetry worse, because the territorial offices are relatively weak in the context of a very largely and powerful Whitehall.  They are very small departments.  There is no getting away from that.

Q161       Mr Fysh: In the context of us leaving the EU, what are the decisions that need to be taken immediately to ensure that some of these governance aspects are properly dealt with?

Professor Wyn Jones: There is a fundamental constitutional and political question around the withdrawal Bill.  Obviously, legislative consent in Cardiff and Edinburgh are major issues.  Both Governments have made their positions clear, and it is very clear that the majorities in those two legislatives will refuse consent unless there is some satisfaction around Clause 11 in particular.  The point that James made earlier is germane.  At the moment, there is no sense of a vision from the UK side as to what they envisage the UK to look like down the road.  There is clearly an absence of trust.  The discussions have not gone well.  Legislative consent is the most immediate issue.  It requires more clarity from the UK Government as to their understanding of the future of the UK post‑Brexit.  That is the first pinch-point.

Professor Anthony: The governance issue in relation to Northern Ireland is the need for the local institutions to be working again.  In the absence of that everything else has really fallen by the wayside.  That is not a directly Brexit‑related answer.

Q162       Mr Fysh: But that is not something that should be a decision of the UK Government at this point in time.

Professor Anthony: No, the Secretary of State for Northern Ireland and the Irish Foreign Minister have convened fresh talks, which are starting this week or perhaps next week, to try to achieve agreement.  It is not a UK Government decision; it has to be a local agreement. 

Q163       Mr Fysh: Professor Mitchell, what are the things that need to be done right now to make sure the Brexit process works?

Professor Mitchell: Returning competencies need to be addressed and relations between the devolved Governments and UK Government around these issues need to be addressed as soon as possible, or at least there needs to be some clarity on how we are to address this and a framework around this.

Q164       Mr Fysh: You have mentioned some of the structural things, but what are the longer‑term issues that will arise for how the UK is governed, additional to what you have already highlighted?

Professor Mitchell: To elaborate on the previous response, within the United Kingdom we would all want to see a continuation of the single market, for lack of a better term, and there is a need to make sure that happens.  There are some areas where we need to ensure we have stability over the long haul and some degree of certainty. 

These are all very important to all Governments.  I would argue that there ought not to be a great deal of difference on a great deal of matters.  Some of the public rhetoric on all sides has not been helpful.  I hope that there is, and had assumed that there had been, significant progress behind the scenes.  This is why I am concerned and surprised that we did not see the amendments in the Commons.  I do not know whether that means that there are more divisions than I thought there were. 

At the end of the day, we have to look at how these things affect the citizen and everyday public policy.  From my point of view, institutions are only important so long as they are delivering for the citizens.  We have to get that right, immediately and into the future.

Q165       Mr Fysh: In that context, what are the areas that the citizens of Northern Ireland, Scotland and Wales find most contentious that need dealing with?

Professor Mitchell: Given the nature of EU competencies, it is so vast.  You could not say it was this or that.  There is so much.  EU decision‑making touches on such a vast array of policy—economic, social and environmental policy.  This is why the consequences of Brexit are so significant.  Over the course of time, the EU has gained areas of policy.  We cannot measure it—there are all sorts of attempts to quantify it and nobody can agree on it—but we all agree that it is huge.  I would not want to specify specific areas.

Q166       Mr Fysh: For Scotland, for example, what might be the top three things that are most totemic that need solutions straightaway?

Professor Mitchell: I am not sure I can speak for Scotland.  Others are better qualified to do that.  For me, there are issues around the economy, for sure.  There are issues in social policy.  It is just so vast.  I have personal interests in certain areas but it is very difficult to answer.  This will also change over time.  Issues will emerge strongly on the agenda and then disappear.  Some of the issues that will become contentious will come as a great surprise.  That has been the practice in the past. 

I am sorry.  If I am reluctant to answer, it is because I really find it very difficult to answer that question. 

Q167       Mr Fysh: What are the ways in which those areas might be different for Northern Ireland and Wales to Scotland?

Professor Anthony: I can give you my top three, because I already gave them earlier.  In the more general political debate, there was concern about Brexit and the implications for ideas of citizenship and identity rights—in particular anti‑discrimination rights, where there is a crossover between discrete Northern Ireland law but also EU law—and then the issue of north‑south co‑operation.

Happily the phase 1 agreement—it sounds like I authored the phase 1 agreement, because I keep talking about it, but I did not—addresses all of those issues and says that, come what may, those will be maintained within the terms of the Belfast agreement.

Professor Wyn Jones: I will add one general point before I give you my top three.  It is clearly very difficult to speak about Wales, Scotland, England or the UK at the moment, because what we have is a very divided polity.  One of the striking things about the post‑Brexit‑referendum context is that there has been very limited losers’ consent.  Political scientists talk about how losers’ consent is vital for democratic societies.  We still basically have the same polarisation that we saw at the time of the referendum.  There has been very little attempt to manufacture losers’ consent, and that is hugely problematic. 

If I was to try and stand back and look at the Welsh context, given that Wales has a higher proportion of its exports going into the single market than any other part of the UK, the relationship with the single market matters hugely.  We are a very big recipient of structural funding.  What happens to economic development policy post Brexit is a huge issue? 

As an Anglesey boy, we have 430,000 lorries a year going through Holyhead.  If there is a hard border between the Republic of Ireland and the UK, I would like to know how Holyhead is going to cope.  Those of you who know Holyhead will know there is absolutely no space to build infrastructure because of the nature of the geology and urban geography of that port.  I make no apologies as an Anglesey boy for raising Holyhead, but the single market and structural funding are two key issues.

Paul Flynn: This agreement was made, and we were told there would be legislative realignment, which is absolutely clear and we all understand what that means—or do we?  It did get rid of the dreaded border between Northern Ireland and the Republic but it put it somewhere else.  There must be a throbbing border that is full of friction between the island of Ireland and Wales, Scotland and England?  How could we avoid that?  As you have rightly said, the local MP for Anglesey has said, the relationship will go through Belgium, not through Holyhead. 

Chair: That was a point, rather than a question.

Paul Flynn: I wanted the Anglesey boy to tell me—

Chair: We will move on.  Let us speed up a little bit, please.

Q168       Kelvin Hopkins: Professor Mitchell in particular has already been into my question, but I will ask it anyway, and there is a supplementary that is more important.  With the proposed increase in overlapping competencies arising from the UK’s departure from the EU, what needs to change to makes institutional mechanisms and arrangements fit for purpose?  You have touched on that. The supplementary is: what lessons can be learned from the mechanisms of inter‑governmental relations using other devolved systems of government?

Professor Mitchell: There are a number of lessons that can be learned.  One is that, where you have a lack of trust and you have adversarial politics, sometimes decisions have to be made behind closed doors.  It is not a common view you will hear from any academic or anyone else, but actually having open covenants, openly arrived at, is not helpful.  There are instances when you have had very public meetings, and that becomes an arena for conflict rather than for resolution.  There will have to be a lot of discussions, frankly, at official level and ministerial level, often in advance of any formal agreement.

The case of Spain is interesting, where they have had these conferences of the presidents of the component parts of the state.  They abandoned having it in around 2012, because they basically became an arena for public battles rather than serious policy discussions.  I should enter that, because it probably is a fairly controversial view and it is not one that is commonly held.  Sometimes we need to encourage that.

We do need to have a look again at the structures, the JMCs.  What can we learn from JMC Europe and take forward?  It has always been the case that we have had these overlapping competencies; it always will be.  We really have to get rid of this notion that it is a dual system.  There is an element of that, and there are certain things that will not have implications elsewhere.  As I said earlier—I want to repeat this point—we have to get into this mindset, regardless of the constitutional arrangements, even if Scotland was to be an independent state, that would continue to be the case.  We will need those inter-institutional arrangements.

Professor Wyn Jones: There are always lessons to be learned elsewhere, but I would underline that the UK is different.  To go back to my point about the kind of double‑hatted nature of the centre, that is a key point of difference.  It is sui generis.

I do not disagree with Professor Mitchell’s point about JMCs, but I would actually want to raise the issue of the internal structure of Whitehall.  The way the devolved Governments relate to Whitehall is problematic.  There is also the role of the territorial offices.  There is an asymmetry here anyway.  Wales is small and poor.  The Wales Office is small and poor in Whitehall terms.  Actually, looking at the way central Government relates to the devolved territories is important.  I take your point about the JMCs, and it is worth thinking about that, but actually Whitehall also needs to reform.

Kelvin Hopkins: I appreciate that Spain is a different case, but there might be easier examples elsewhere in the world.  I will not press you on that at the moment. 

Professor Mitchell: One dimension is whether you want more formalised or less formalised.  If you look across polities, there are some that are more formalised and some that are less formalised.  We have to be careful.  If you think you want to go in one direction, there is a case for and against.  Even though I am advocating a more formalised approach, do not assume that it is going to solve everything; it will not.  At the end of the day, if parties to any discussion are determined that they are going to have a fight, there will be a fight.  No institutional structure will prevent that.

Q169       Kelvin Hopkins: My final supplementary is this: how might placing inter‑governmental relations on a statutory improve them?  If that was done, would it not be a nudge in the direction of a written constitution?

Professor Mitchell: It would.  It also raises back the question of the courts and the Supreme Court.  If it was on a statutory basis, then one assumes that we would mean there would be some kind of judicial review.  I gather some people would not like that; others would.  That would be a consequence.  If we are going to move in that direction, we have to look at the consequences of all of this.

I do not know whether it would be a formal written constitution.  What we have been doing is we now have a constitution with many more significant elements written down in law, but this is not in the sense of a hierarchy of law, i.e. primary laws against secondary laws, constitutional law and suchlike, but we are gradually moving in that direction.  I do not envisage in the near future any prospect of a formal written constitution in the UK, but there is something happening underneath the surface.  Again, that is a process that has been underway for quite some time. 

Q170       Kelvin Hopkins: Professor Wyn Jones was suggesting that we have to look at Whitehall as well and draw that in.  I do not know whether either of you would like to comment.

Professor Mitchell: Yes and no.  I remember doing work in Whitehall in the early days of devolution.  It seemed to me that Whitehall had managed the devolution change really quite well, certainly as compared with membership of the EEC.  That was much more fundamental.  One of the reasons for that is that Whitehall was quite used to dealing with the distinct components of the UK.  In terms of Whitehall, I do not know what reform would be envisaged, but I would place that under the broader inter‑governmental relations.  I am a bit more relaxed on that than Richard.

Q171       Ronnie Cowan: I was going to pick up that point about Whitehall.  Professor Wyn Jones, I was wondering whether there is a feeling that there is a difficulty in the relationship between Whitehall and the territorial offices.  Is that maybe encouraged by a feeling of entitlement or superiority that emanates from this place?

Professor Wyn Jones: That is a point, rather than a question.

Ronnie Cowan: Do you agree?

Professor Wyn Jones: I am not going there. 

Professor Mitchell: We should not see the territorial offices as the only part of the story in terms of inter-governmental relations.  Frankly, they are the least important part.  I am not saying they are unimportant but they are the least important. 

I would commend a really good article that was written back in the 1970s by John Mackintosh, who was both a Professor of Politics in Edinburgh and a Member of Parliament here.  He argued that the role of the Secretary of State should be looked at in a post‑devolution situation.  What we should do is look at the functions and the roles that will be required post‑devolution, and ask ourselves where these roles should be performed.  It need not necessarily be in the territorial offices.  My view is that the territorial offices have become, post devolution, essentially institutions for the kind of more public battles, certainly in the Scottish case, between Edinburgh and London.  The functions of good relations are much more readily addressed functionally by subject matter.

I am on record as saying we should do away with them.  I stand by that view, but we should not do away with some of the jobs they are doing; they should be integrated elsewhere, which is already happening.  It has always happened. You can go back to the Scottish Office in 1885.  There has been a greater degree of continuity than is often appreciated.  There may be room for looking at reform there, but it is working reasonably well. 

Q172       Dr Huq: My question overlaps with what you have just been saying, because it is a kind of SWOT analysis one.  What opportunities do the UK’s departure from the EU present for the total reform of inter-governmental relations within the UK?  Previous reports have said that relations should be more formalised and there should be both us and the Lords meeting regularly.  What do you think about that?  You have said quite the opposite just now.

Professor Mitchell: We have an opportunity to do it.  Whether we take it or not, I do not know, but we need to address some of these questions.  I do not know whether we look at it in broader terms or we continue to do as we have done to date and muddle through; my guess is that we will muddle through.  It may be suboptimal, but we will manage.  It is an opportunity for you to put pressure on Government to try to achieve that.

Professor Wyn Jones: I am struggling to see the opportunities.  I see lots of dangers.  I apologise to my friend and colleague, James Mitchell, for coming back to sovereignty again, but if the Brexit vote is being interpreted as a reassertion of traditional notions of parliamentary sovereignty, then I can only see conflict with the devolved level emanating from that.

Q173       Dr Huq: Could there be greater overlap if the staff were all trained together and there was that kind of thing?

Professor Wyn Jones: You can do nice things, but if there is a fundamental reassertion of parliamentary sovereignty, if there is an unwillingness to recognise that, in a sense, we have divided sovereignty underpinned by popular mandates in the devolved territories, then I can only see conflict emanating.  I do not see a willingness on behalf of the winning side in the Brexit referendum to engage and embrace the divided nature of sovereignty within the UK.  What I see is a reassertion of parliamentary sovereignty.

Q174       Dr Huq: Professor Anthony, you did not answer the London one, so can you very quickly at the same time, while you are there?

Professor Anthony: The London question?  I do not think I have answered any questions. 

On that question, it is a noble sentiment, but the background principles mean there has to be a winner‑takes‑all approach.  If there is a dispute, it consolidates something that is not attractive in the devolved territories more generally, or from some perspectives in the devolved territories.

Professor Mitchell: Can I make one observation on that?  It is not that there is going to be more overlap; it is going to be a different form of overlap.  The point about JMC Europe is that it was an acknowledgement of overlap, and of course it also included the European level.  That is where we had a working institutional relationship.  My concern is that we may lose that.  The overlap now does not involve Europe, but we will have to figure out how we engage in that way.  Will it spread out beyond that?  I have my doubts.

Q175       Mr Jones: I was interested to hear that you thought we were just going to muddle along anyway.  Given that we have now spent well over an hour saying what is wrong with the present system, should there not be some effort to formalise relationships?

Professor Mitchell: What should and will happen may not be the same thing.  There have been a series of reports from committees in the Commons and the Lords on these issues, and not much has happened.  That is why I do not think we will get many changes, unless there is a crisis.  A crisis may create a demand for a more formalised relationship.

I am sympathetic to formalisation as long as we do not do it blindly and we recognise some of the problems, but that is just not going to happen.  Frankly, it is the way the constitution has evolved.  If you like, we have never started afresh; we are not about to start afresh.  We are not going to have a revolution—at least I do not see one coming—that would allow us to start afresh.

We will evolve gradually, piecemeal.  That is how it is going to happen.  Whether that is good or bad, that is likely to be the way it evolves.

Q176       Mr Jones: We are talking about inter-governmental relations.  It seems to me that this excludes parliamentary sovereignty, or inter‑Parliamentary scrutiny of what is happening in these inter‑governmental relations.  Is there is a role for inter‑parliamentary scrutiny of these processes?

Professor Mitchell: Yes, Calman of course made a recommendation along those lines.  I see the argument for it.  On the other hand, coming back to my point, it is a very public means of bringing politicians from Edinburgh, Cardiff, Belfast and here together.  To me, will that generate more light than heat or more heat than light?  My inclination is to think it would generate more heat than light.

Q177       Mr Jones: Really, at the moment, the Parliaments are excluded from the process, save at the domestic level.  Is there a role perhaps for parliamentary groups coming together or maybe an inter‑parliamentary committee?

Professor Mitchell: I could see that, but my point is that it may well not be quite as productive as you would hope, and it may just be an arena for inter‑party battles.

Professor Anthony: I just have two quick points.  First, if there is inter‑parliamentary scrutiny, whenever this comes back to the relevant Parliament in the devolved territories, it presumes that they have some control over whatever final decision goes ahead.  Surely that is not consistent with the current model of devolution, where ultimately things nestle around parliamentary sovereignty.  I do not like the word “veto”, but there would have to be some sort of veto.

Mr Jones: It would probably have to be underpinned by statute.

Professor Anthony: It would.

Mr Jones: That brings the courts back into the equation.

Professor Anthony: I have my answer now about Clause 5.  The other point is about the British‑Irish Council, because the British‑Irish Council is perhaps an example of co‑operation where there has been a general discussion and supposedly a progression of interests.

There is an article by John Coakley—it is in Irish Political Studies—where he talked about the British‑Irish Council.  Its original role was to shore up the union’s position under the Belfast agreement, but it has actually played a more facilitative role in terms of improving east‑west relations more generally.  Things can work if you formalise them; I suspect then you also have to have a dispute resolution mechanism.  That is not necessarily the courts, but it could be the courts. 

Professor Wyn Jones: All I would say is that I have had the privilege of appearing in front of a joint National Assembly and House of Commons evidence session on what is now the Wales Act, and I thought it worked extremely well.  It was a session with a very direct, concrete purpose and it worked extremely well.  All the members of both the Constitutional and Legislative Affairs Committee of the National Assembly and the Welsh Affairs Select Committee of the House of Commons found that very useful.  It has worked, so there is a record of this actually working rather well, but it has to have a concrete purpose. 

Q178       Mr Jones: Do you see a role for formalising that?  That was an ad hoc arrangement.

Professor Wyn Jones: The difficult is that there would need to be a concrete purpose, or you will end up, I suspect, with grandstanding, which was Professor Mitchell’s fear.  When there is a purpose it has worked well.  That is positive. 

Q179       Mr Jones: Could it be formalised? 

Professor Wyn Jones: Yes, if there is a concrete point.  Just getting together because it is nice to get together quickly degenerates into either grandstanding or people losing interest, so I am sceptical of that.

Chair: I attended an informal meeting of the inter‑parliamentary joint committee last week, and it was very instructive.  We issued a statement at the end of it, which was certainly reported in the Herald.

Q180       Ronnie Cowan: I fear that negotiations between this place and the devolved powers are going the same way as the debates we have had about Clause 11.  We are going all the way down the line and nothing is going to happen.  We are 578 days since the EU referendum and there are 430 days until Brexit.  What can we do now in order to build and develop trust and mutual respect between the UK Government and the devolved powers during these negotiations?

Professor Mitchell: Frankly, there is no answer to that.  You cannot magically create trust.  One would like to think that, behind the scenes, there is some degree of trust and something is happening, as I thought—I keep repeating this point—was happening.

I have often thought that what happens in these relations is that there is a public face that is highly adversarial and it gets a great deal of media and public attention, but beneath the surface there is some greater degree of consensus and a recognition that there is mutual self‑interest in working things out.  I would like to think that is the case.

I asked myself why we are where we are, and I come back to my point.  The lack of preparation and the lack of time is hugely important here.  There is not much we can do about that.  One would imagine that, when we get to that point where some kind of agreement is reached, we will not have resolved everything but we will at least be in a position to have a serious debate to resolve outstanding issues.

There will be fudges.  There will have to be, and that is not necessarily a bad thing.  “Fudge” is a very negative way of putting it.  “Constructive ambiguity” might be another.  We are going to have to have some of that.

It would be good if Governments involved in this made a more public effort to acknowledge the difficult position the other is in.  It would be good, for example, for the Scottish Government to acknowledge that we want to maintain common agreements on many economic matters and that they are not looking for powers to come to Edinburgh that would result in different tariffs or such nonsense.  It would be good to get some public acknowledgement of that.  In other words, let us seek those areas where we can publically have more common ground.

Professor Wyn Jones: To be fair to the Scottish and Welsh Governments, they have recognised all of this publically many times.  Clearly, the Whitehall machine is just overwhelmed, and I understand that.  However, I do not understand why there has not been a greater willingness by the UK Government to address the concerns of the devolveds.  This seems to me to be necessary. 

One of the fascinating things over the last few months, as a student of politics, is the way we have seen the development of a very close relationship between Cardiff and Edinburgh around Brexit.  The SNP Government in Edinburgh and the Welsh Labour Government, plus other people in Cardiff, are now working very closely together around this.  From talking to both sides of that relationship, the sense I get is that this was not something they expected and that they have been pushed together because of what they regard as a lack of serious engagement from London.  We have not had a relationship as close between Cardiff and Edinburgh in any previous period of devolution.  Something has changed in the last six months.

Q181       Ronnie Cowan: Does that extend to Northern Ireland?

Professor Wyn Jones: There is nobody to talk to.

Professor Anthony: There is nobody there.  There is nobody to talk to just at present, without the power‑sharing Government.  In law, the First Minister and the Deputy First Minister have to act together.  We do not have agreement to form a Government.

Q182       Ronnie Cowan: In the longer term, what sort of impact is this going to have on the relationship between the UK Government and the devolved powers? 

Professor Wyn Jones: As I mentioned, we have the legislative consent process, so there will be a crisis point or a pinch-point very shortly.  I emphasise again: this is going to happen rather quickly.  There will be a crisis in constitutional terms unless these amendments come forward and they are acceptable.  Like I say, I do not understand why we have not seen them.

Professor Anthony: It will be a crisis that will play out in the political realm.  The Miller case makes clear that the Sewel convention is not something the courts are going to police, so it will be a crisis in the political context. 

Q183       Mr Fysh: It has been suggested to us that the legal and technical complexities—we heard about some of the social and political ones too—of sorting out where the returning power should rest should be considered by a standing committee or a standing commission similar to the Calman Commission.  I am just wondering whether you could outline some of the strengths and weaknesses of that proposal.

Chair: There is also a proposal for something like the Silk Commission.

Professor Mitchell: Those were ad hoc.  They were not standing; they were looking at a particular point.  What you are proposing is something that would exist and continue to exist beyond this, or are you talking about something that would simply look at this particular issue?  If it is particular to the competencies returning from the EU, these commissions take time.  It would mean we would be pushing things back.  That may not be a bad thing.  The question is hen about the agreement, the membership and the authority that would be given to that commission.  In other words, we are entering the field of inter‑governmental relations for a specific purpose.  If we were going to do that, we should have done that and started this journey a long time ago.  It is a bit late now, with due respect.

Professor Anthony: I was just going to mention timelines.  Given the Article 50 timeline that Brexit is working towards, I do not see how it could martial its tasks effectively.

Q184       Mr Fysh: No.  There was a suggestion from, for example, Professor Page, who came and saw us, that there might be some sort of a standstill agreement for the time being.  I guess it is possible that this could be a longer‑term ambition.  That might be a way of dealing with some of the issues that you raise, Professor Wyn Jones, about the timings of these factors. 

Professor Wyn Jones: It is tempting to think that wise women and men can come together and come up with a neat solution, but this is deeply political.  It goes to the nature of people’s understanding of the state that we live in, about which there are principled differences.  I am afraid that politicians cannot pass this off to academics. 

Chair: We have reached the end, but thank you very much for a fascinating and illuminating session.  We look forward to seeing how the Clause 11 issues are going to be solved.  We are all seized with the same urgency.  Thank you very much indeed.