Table of contents
- 1. Structure of the union and the devolved settlements
- 2. Northern Ireland: Impact of the protocol on the union and devolved administration
- 3. Scotland: A second independence referendum?
On 23 June 2022, the House of Lords is due to debate the following motion:
Lord Lisvane (Crossbench) to move that this House takes note of the stresses upon the union of the United Kingdom.
Constitutional issues relating to the union, its future, where it might be under strain and where it might be reformed are wide-ranging. In preparation for this debate, this briefing focuses on some aspects that may be of interest. The first half looks at the constitutional structures of the union and the devolved settlements. It highlights recent developments, such as in the structures for managing intergovernmental relations between the UK government and the devolved administrations in Scotland, Wales and Northern Ireland and disagreements that arose owing to Brexit over the boundaries of devolved and reserved competence. The second half of the briefing considers two political questions that are particularly prominent at present: the implementation of the Northern Ireland Protocol and the prospects for a second Scottish independence referendum. Links to other relevant briefings are suggested throughout.
1. Structure of the union and the devolved settlements
1.1 Evolution of the union and devolution settlements
The current structure of the union has evolved over hundreds of years. Wales was brought under English law by legislation passed by Henry VIII in 1536. The English and Scottish Parliaments passed Acts of Union in 1707, creating the United Kingdom of Great Britain. The Union with Ireland Act 1800 and similar legislation passed in Ireland abolished the Irish Parliament and provided that Great Britain and Ireland would be united into one kingdom. The secession of what was initially known as the Irish Free State followed the Anglo-Irish Treaty of 1921.
Within the overarching constitutional framework of the union, there is also a varying pattern of devolution of powers in different parts of the union. This devolution of administrative, executive and legislative powers has taken various forms in the constituent parts of the UK over time. The modern legislative framework for devolution in Scotland, Wales and Northern Ireland were set out in the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 respectively. All three acts were passed under the Labour government of Tony Blair and have subsequently been amended, reflecting further changes to the devolved settlement. UK government guidance on devolution notes that “the devolution settlements are complex and are all different”. Moreover, within England, different types of local authority have differing levels of devolved powers and funding. The House of Commons Library has summarised the current picture on devolution as follows:
The UK system of devolution is asymmetric, in that different parts of the UK have different forms of devolution and varying degrees of power. Scotland, Wales and Northern Ireland now all possess executive and legislative devolution, while metro mayors in parts of England (and the mayor of London) have only executive powers. Combined authorities and the London Assembly can scrutinise executive decisions but not legislate in the manner of the Scottish Parliament, Senedd Cymru/Welsh Parliament and the Northern Ireland Assembly.
Those three legislatures can only pass primary and secondary laws in devolved (or “transferred” in the case of Northern Ireland) areas, with “reserved” matters (or reserved and “excepted” in NI) remaining the responsibility of Westminster. The UK Parliament can still legislate in devolved areas, but, under the Sewel convention, does “not normally” do so without the explicit consent of the relevant devolved body.
Further details about the devolved settlements are set out in a series of House of Commons Library briefings:
- ‘Devolution in Scotland: “The settled will?”’, 10 June 2022
- ‘Devolution in Wales: “A process, not an event”’, 4 May 2022
- ‘Devolution in Northern Ireland’, 7 June 2022
- ‘Devolution to local government in England’, 10 February 2022
1.2 Intergovernmental relations
As well as the statutory frameworks set out in the devolution acts, there are also non-legislative agreements between the UK’s central government and devolved governments that cover mechanisms for joint decision-making and dispute resolution. The UK government and the devolved administrations undertook a recent joint review of intergovernmental structures and ways of working. The ‘Review of intergovernmental relations’ reported in January 2022. It set out new working arrangements for intergovernmental relations (IGR), to which all four administrations agreed. The review confirmed that intergovernmental decisions would “continue to work on the basis of agreement by consensus”. It also set out a “clear and agreed” process for resolving disputes.
The new structures and processes are non-statutory and are to be “kept under review”. Overall accountability for IGR continues to sit with the prime minister, the first ministers of Scotland and Wales and the first and deputy first minister of Northern Ireland. In contrast with the previous IGR arrangements, engagement within the new structure is to take place regularly and not just “when needed”. The new IGR structure is made up of three tiers:
- Lowest tier: Interministerial groups (IMGs) on specific policy areas.
- Middle tier: the Interministerial Standing Committee (IMSC) which considers cross-cutting issues; the Finance Interministerial Standing Committee (F:ISC); and additional time-limited committees.
- Top tier: the Prime Minister and Heads of Devolved Governments Council (the ‘council’). IGR will be overseen by the council, with the other two tiers accountable to this forum.
The UK government described the IGR review as a “landmark agreement” that would “create a more equal, transparent and accountable system”. Spokespeople from the devolved governments also welcomed the reforms but cautioned the review’s success would depend on the UK government’s “attitude and behaviour”. The deputy first minister of Scotland, John Swinney, warned that a change in approach from the UK government was needed if there was to be “a genuine improvement in intergovernmental relations”. A spokesperson from the Welsh government said the “test” would be whether the UK government “follows the spirit of the review, based on respect, so that this new approach serves all governments equally”. The House of Lords Constitution Committee has argued that the success of the new arrangements will depend on whether the UK government and the devolved administrations “are committed to using the new structures to cooperate on achieving shared objectives, rather than simply managing—or taking opportunities to accentuate—their differences”.
This review followed earlier work by Lord Dunlop (Conservative), who was commissioned by the UK government to conduct an independent assessment of the UK government’s operations in the areas of devolution and IGR in 2019. His report, known as the Dunlop review, was published in March 2021. In response to the Dunlop review, the then Chancellor of the Duchy of Lancaster, Michael Gove, said the government would establish a new Union Strategy Committee, chaired by the prime minister in his capacity as minister for the union, and a new policy implementation sub-committee. He also said the government would make changes to the civil service, including giving greater weight to devolution issues in civil service training programmes.
Further information about both reviews is available in the following briefings:
- House of Lords Library, ‘Queen’s speech 2022: Devolved affairs’, 5 May 2022
- House of Commons Library, ‘Intergovernmental relations in the United Kingdom’, 21 January 2022
- House of Lords Library, ‘Devolution and government relations’, 23 June 2021
1.3 Impact of Brexit: Common frameworks, legislative consent and replacing structural funds
Changes that came about because of the UK’s departure from the European Union have had the potential to affect relationships within the union of the United Kingdom.
As a result of Brexit, powers returned to the UK over policy areas that used to fall within the EU’s competence. Where these policy areas intersect with areas of devolved competence within the UK, the UK government and the devolved administrations have drawn up UK common frameworks, in line with definitions and principles agreed by the Joint Ministerial Committee (EU Negotiations) in 2017. (This committee was part of the previous IGR structure.) It said that common frameworks would set out a common UK, or GB, approach and how this approach would be governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. They may be implemented through legislative or non-legislative means. To date, many common frameworks have been published in provisional form, pending scrutiny by all relevant parliaments and final ministerial clearance.
The common frameworks process led to disagreements between the devolved administrations and the UK government. The European Union (Withdrawal Bill) introduced in the 2017–19 session proposed that all devolved legislatures would have to comply with retained EU law unless the UK government ‘released’ the policy area to devolved competence. However, the Scottish and Welsh governments described this as a ‘naked power grab’. The proposed mechanism was reversed during the act’s passage so that most powers returning from the EU in areas of devolved competence would go to the devolved legislatures unless the UK government used a new power to ‘freeze’ the policy area. While the Welsh government accepted this change and recommended legislative consent to the bill, the Scottish government did not. The European Union (Withdrawal) Act 2018 (EUWA 2018) was passed without the Scottish Parliament’s consent. In the event, the government did not use its power to ‘freeze’ certain policy areas, and it has now expired and been repealed.
Disagreements over the extent of devolved competence also arose during the passage of the United Kingdom Internal Market Act 2020 (UKIMA 2020). This legislation concerned enshrining ‘market access principles’ of mutual recognition and non-discrimination. In other words, while each government of the UK can regulate goods and services in its part of the UK, it cannot prohibit the sale of goods in its part of the UK that comply with the applicable regulations in the part of the UK where they are produced. Equally, it cannot regulate to discriminate against goods from another part of the UK. The Scottish and Welsh governments argued that this would undermine the devolution settlement. Neither the Scottish Parliament nor the Welsh Senedd consented to the act. The Welsh government also sought judicial review of its impact on the Senedd’s legislative competence. In February 2022, the Court of Appeal upheld a High Court ruling that it was too soon for a judicial review of the impact of UKIMA 2020.
There are, however, some exclusions to the act where market access principles will not apply. Delegated powers under the act allow new exceptions to be made. A process for agreeing such exclusions in areas of policy divergence within a common framework has been developed by the UK government and the devolved administrations, with guidance published in December 2021. The approval of both Houses of Parliament is needed through the affirmative resolution procedure for new exclusions from the act’s market access principles.
The House of Lords Constitution Committee concluded in a report earlier this year that implementing Brexit had “placed […] under strain” the Sewel convention—the convention that the UK Parliament does not normally legislate in areas of devolved competence without consent of the relevant devolved legislature. The committee said that “other than in exceptional circumstances, the UK government ought not to seek to legislate in devolved areas without consent”. It did not believe that it would be desirable to involve the courts in adjudicating disputes on the meaning and application of the Sewel convention, as such questions would be “best resolved through political deliberation”. The committee called for strengthened scrutiny in the House of Lords of bills that engage the convention.
In response to a recent parliamentary question about the passing of legislation without the Scottish Parliament’s consent, Alister Jack, secretary of state for Scotland, argued that “following Brexit, it is this government’s duty to legislate sensibly for the whole of the United Kingdom, which has involved legislating without consent on a small number of occasions and may well mean doing so again in the future”.
Disagreements have also arisen between the UK government and the devolved administrations over post-Brexit funding arrangements. The UK government launched a £2.6bn UK shared prosperity fund (UKSPF) in April 2022 to replace EU structural funding that UK regions received during the UK’s EU membership. The government has stated that this money will “go straight to local places right across England, Scotland, Wales and Northern Ireland to invest in three local priorities: communities and place, support for local businesses and people and skills”.
However, the devolved administrations do not support this funding being controlled from Westminster rather than by them. One of the grounds on which the Scottish and Welsh governments’ objected to the United Kingdom Internal Market Bill was over powers to allow the UK government to provide financial assistance throughout the UK, which they said would enable central government spending in devolved policy areas without input from the devolved administrations. Vaughan Gething, the Welsh minister for economy, recently set out his objections to the UKSPF in a letter to Michael Gove, secretary of state for levelling up, housing and communities, highlighting the following points of disagreement:
- the UK government’s failure to honour repeated pledges to replace, in full, EU funds for Wales, meaning an overall shortfall of more than £1.1bn (accounting for the loss of structural and rural funding, and inflation) by March 2025
- the UK government’s use of the UK Internal Market Act  to forcibly take decisions in devolved areas and exclude the Welsh government from a transparent process of joint decision making for the SPF, while bypassing the scrutiny of the Senedd
- the prospectus’s methodology for financial allocations to Wales, which distributes money away from those areas where poverty is most concentrated
Mr Gething said the Welsh government would not endorse the UK government’s approach to the UKSPF and would not be using any of its own resources to implement UK government programmes in Wales which the Welsh government “consider to be flawed and undermining of the devolution settlement”.
On the subject of whether Wales will be worse off under the UKSPF than it would have been under EU funding, Simon Hart, the secretary of state for Wales, has said that by 2024/25, the annual funding from the UKSPF will match the average annual funding Wales would have received from the European regional development fund after adjusting for inflation. The House of Commons Library has set out further analysis of the comparative funding levels in its briefing on the UK shared prosperity fund.
The following reports and briefings explore in greater detail the topics covered in this section:
- House of Lords Library, ‘Common frameworks and the devolved nations’, 29 September 2021
- House of Lords Common Frameworks Committee, ‘Common frameworks: Building a cooperative union’, 31 March 2021, HL Paper 259 of session 2019–21
- House of Commons Library, ‘Devolution: The Sewel convention’, 13 May 2020
- House of Commons Library, ‘The UK Shared Prosperity Fund’, 26 April 2022 and ‘UK Shared Prosperity Fund: Design and development’, 30 March 2022
1.4 Calls for review and reform
There are those who argue that the constitutional arrangements of the union should be reviewed. Such calls have come both from those who seek to strengthen the union and those who wish to see reform that would create a more federal structure.
The House of Lords Constitution Committee published its report ‘Respect and cooperation: Building a stronger union for the 21st century’ in January 2022. While recognising “current strains” on the union, the committee also expressed “faith in its future as an adaptable, shared asset for all our nations”. It found the UK’s unique constitutional arrangements provided flexibility and “an asymmetrical approach to adapt to and accommodate its different nations and regions”. However, it also believed that “the increasing lack of overall coherence” and “the failure to develop a modern form of ‘shared governance’ which recognises central and devolved governments have distinct statutory responsibilities that often intersect” had “undermined the strength of the union”. The committee called on the government to set out a clearer vision for shaping the union in the 21st century. It also proposed what it described as “practicable, achievable improvements to the functioning of the union and to its inter-relationships”. This included greater parliamentary scrutiny of bills engaging the Sewel convention; steps for building on the outcome of the IGR review (such as sharing lessons learned, better data sharing and more engagement for the devolved administrations in the process of negotiating international trade agreements); greater scrutiny by the House of Lords of IGR; greater interparliamentary engagement across the UK; cultural change across Whitehall; and a “fairer allocation” of funding across the four nations of the UK.
The committee concluded there are “no obvious governance changes to provide England with a distinctive voice that command political and public support”. It believed that establishing an English Parliament would “crystallise England’s relative strength” economically and demographically compared to the existing devolved legislatures, which would “destabilise the union”. Instead, the committee was in favour of greater decentralisation in England to “improve economic performance, address regional inequalities and improve service delivery”, and “achieve a better overall balance of powers between the centre and the other parts of the United Kingdom”. However, it considered that the government’s current deals-based approach to local government in England was “not sufficiently ambitious”. The government has not yet responded to the committee’s report.
The Welsh government has established an Independent Commission on the Constitutional Future of Wales. It has two broad objectives, to consider and develop:
- durable options for fundamental reform of the constitutional structures of the UK
- all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales
In January 2022, the co-chair of the commission, Professor Laura McAllister, wrote that its work has “a licence to be radical” and will “explore options for governing Wales as a distinct nation within the existing UK, and also the options for a future for Wales outside the union”. The commission launched a public consultation on 31 March 2022, citing “an opportunity to tell us what is working well with the way Wales is governed at the moment, and what needs to change”. The consultation will run until 31 July 2022, with an interim report expected in the autumn/winter. The commission’s final report is expected to be published by the end of 2023.
During a House of Lords question for short debate on 9 June 2022, Lord Wigley (Plaid Cymru) proposed the creation of a commission to consider the future constitutional relationships of the UK. In particular, he suggested examining a confederal model where the nations of the UK would have their own sovereignty but could pool it for certain purposes such as recognising the Queen, having sterling as a shared currency and a confederal central bank, and cooperating on defence. Lord Wigley suggested that if Northern Ireland united with the Republic of Ireland, such a model could include a free-trade area with the EU. Baroness Humphries, the Liberal Democrat spokesperson on Wales, supported setting up a constitutional commission. She said her party’s vision was for “a federal United Kingdom based on a stable long-term framework in which real power is exercised by and within empowered nations, together with the regions and local communities. Others in the debate argued for greater devolution in England.
The Constitution Reform Group, a group of politicians, academics and parliamentary and government officials who are supportive of the union, also suggested that the “present constitutional arrangements are becoming an inchoate muddle”. Lord Lisvane, (Crossbench) a member of the group’s steering committee, has argued for a “reshaping of the relationships, powers and responsibilities of the four members of the union”, in part to address what he described as “the imperial condescension of the UK’s central government”. He introduced a private member’s bill, the Act of Union Bill, in the 2017–19 parliamentary session, although it did not progress beyond first reading. The Constitution Reform Group published what Lord Lisvane said was an improved version of the bill in 2021. The bill included provisions to establish statutory purposes for the union and to “provide the four constituent parts of the UK with a clearer view of their local and UK-wide responsibilities” and “clearly define the scope and purpose of their cooperation”. It provided for a referendum on a series of questions: whether to accept the proposed new constitutional arrangements; whether to abolish the House of Lords and rename the House of Commons as the UK Parliament, or to restructure the House of Lords to have a mix of elected and independent appointed members; and whether to have an English Parliament or English regional devolution.
Some of the ideas mentioned here are explored further in the following briefings:
- House of Lords Library, ‘Calls for a UK-wide constitutional commission’, 26 May 2022
- House of Lords Library, ‘Leaving the European Union: Stability of the United Kingdom’s union’, 21 December 2018
- House of Lords Library, ‘Constitutional issues and the case for a UK-wide constitutional convention’, 6 December 2018
- House of Commons Library, ‘Strengthening the union’, 20 July 2018
- House of Lords Library, ‘Constitutional Convention Bill’, 13 July 2015
1.5 UK government position
The Conservative manifesto for the 2019 general election identified “strengthening the great union between the United Kingdom’s four nations” as one of the ways it intended to “unleash our country’s great potential”. Speaking in the recent House of Lords question for short debate on a constitutional commission on 9 June 2022, Lord Greenhalgh, minister of state at the Department for Levelling Up, Housing and Communities, repeated the government’s commitment to strengthening the union, “protecting and promoting its combined strengths and the values that we all share, and ensuring that the institutions of the United Kingdom are used to benefit people in every part of the country”. He said the government were “great believers in devolution”, arguing that the new IGR arrangements would “herald a new era for collaboration” across the UK.
The government has also argued that its spending decisions are a key part of strengthening the union. It described the autumn budget of 2021 as “a budget for the whole of the United Kingdom”, including the first allocation of UK-wide levelling up funding, and “the largest annual block grants for devolved governments in Scotland, Wales and Northern Ireland, in real terms, of any spending review settlement since 1998”. Further information about levelling up funding is available in the House of Commons Library briefing ‘Local growth funds’ (25 March 2022).
2. Northern Ireland: Impact of the protocol on the union and devolved administration
The relationship between Northern Ireland and the rest of the United Kingdom has also been impacted by the UK’s withdrawal from the European Union.
The Protocol on Ireland/Northern Ireland was a solution to avoiding a ‘hard border’ between Northern Ireland and the Republic of Ireland. It was negotiated and agreed by the EU and the UK as part of the withdrawal agreement. Under the terms of the protocol, Northern Ireland has a unique status. It is part of the UK’s customs territory but is subject to the EU’s customs code, VAT rules and single market rules for goods, including sanitary and phytosanitary (SPS) rules to protect animal, plant and public health.
2.1 Unionist objections to the protocol
Unionists argue that the Protocol on Ireland/Northern Ireland is undermining the union by effectively placing a trade barrier in the Irish Sea between Northern Ireland and the rest of the UK. The leaders of the Democratic Unionist Party (DUP), the Ulster Unionist Party (UUP), the Traditional Unionist Voice (TUV) and the Progressive Unionist Party (PUP) affirmed their opposition to the protocol in a joint declaration in September 2021. The declaration called for the protocol to “be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom”. An explanatory note published alongside the declaration set out the unionists’ case against the protocol, arguing that it “severely undermined” the East/West strand of the Belfast-Good Friday Agreement and resulted in “Great Britain designated as a ‘third country’” for the purposes of trade and importing goods into Northern Ireland, “with a regulatory border partitioning the United Kingdom, and subjecting Northern Ireland to European Union laws and jurisdiction”. The note said that “going forward, any agreement which fails to ensure a proportionate and equitable solution which respects the sovereignty of the United Kingdom and restores our unfettered place within the [UK] internal market, cannot command the support of the unionist community”.
Objections to the protocol have prompted a legal challenge against the UK government. A group of unionist politicians brought judicial review proceedings over the protocol in 2021. The group consisted of Jim Allister (leader of the TUV), Ben Habib (former Brexit Party MEP for London), Baroness Hoey (non-affiliated), Steve Aiken (former leader of the UUP), Arlene Foster (former leader of the DUP) and Lord Trimble (now Conservative, former leader of the UUP). Part of their case was that elements of the protocol and the legislation that implemented it in domestic law (EUWA 2018, as amended) conflicted with article VI of the Acts of Union 1800. Article VI provides that the subjects of Great Britain and Ireland shall be “on the same footing” in respect of trade and that the equal footing shall be preserved in any future treaty “with any foreign power”. They also argued that “the fundamental change under the protocol in giving away legal power to the European Union is a change in the constitutional status of Northern Ireland” and that such a change could only occur lawfully if it had been accepted in advance with a referendum held in accordance with section 1(1) and schedule 1 of the Northern Ireland Act 1998.
This application was dismissed first by the High Court in June 2021. The Court of Appeal rejected an appeal against the High Court judgment in March 2022. The Court of Appeal said there was a valid argument that EUWA 2018 (as amended) conflicts with the ‘same footing’ provision in article VI of the 1800 act because the citizens of Northern Ireland remain subject to some EU regulation and rules as part of the withdrawal framework which does not apply to other citizens of the UK. However, it concluded that Parliament acted lawfully in enacting the relevant amendments to EUWA 2018 and there was no reason to doubt it knew what the arrangements involved. The court also held that section 1(1) of the Northern Ireland Act 1998 only related to the formal constitutional status of Northern Ireland and whether it was to remain part of the UK or become part of a united Ireland. It said it had “no impact on the legality of the changes enacted by the EUWA 2018 as amended and the protocol”. The court dismissed these and other grounds for appeal. The applicants said they would take the case to the Supreme Court. According to the BBC, the Supreme Court is unlikely to deliver a judgment before 2023.
2.2 Impact on devolved administration in Northern Ireland
The DUP’s response to the protocol has also impacted the functioning of the devolved administration in Northern Ireland in recent months. On 3 February 2022, Paul Givan of the DUP resigned as first minister of the Northern Ireland executive, citing the impact of the protocol on the “delicate balance created by the Belfast and St Andrew’s Agreements”. Under the Northern Ireland Act 1998, if the first minister resigns, the deputy first minister also ceases to hold office. Therefore, Mr Givan’s resignation meant that Michelle O’Neill of Sinn Féin ceased to be deputy first minister. The Northern Ireland executive was no longer able to meet as it is chaired jointly by the first and deputy first ministers. Other executive ministers stayed in post, but they could not make decisions on contentious or cross-cutting issues. The move ultimately resulted in the Northern Ireland executive being unable to function fully in the run-up to the scheduled assembly elections in May 2022.
Assembly elections were held on 5 May 2022. These returned Sinn Féin as the largest party, with 27 seats, followed by the DUP, on 25 seats. The Alliance Party had 17 seats, the UUP had nine and the SDLP had eight. However, the assembly has yet to form a new executive since the elections. This is due to the DUP’s refusal to elect a new speaker until its continuing concerns with the protocol are resolved.
Explaining this stance to the assembly on 13 May 2022, Paul Givan stated that the “Irish Sea border has fundamentally undermined the Belfast Agreement [and] has changed our relationship with the United Kingdom”. He said that his party had “received a mandate in the assembly election to remove the Irish Sea border” and that would need to be respected. Writing in a newspaper article, Sir Jeffrey Donaldson, leader of the DUP, described it as “unfortunate” that he had “had to cease operating the political institutions before Dublin and Brussels fully recognise[d] the lack of cross-community support for the protocol”. He stated that “if the protocol is not resolved, then Northern Ireland will be without a devolved government”.
Other parties were critical of the actions of the DUP, with Michelle O’Neill, Sinn Féin’s first minister designate, saying they were denying democracy and obstructing the executive from serving the public and properly supporting public services. Doug Beattie, leader of the UUP, argued that electing a speaker would ensure the assembly would not be silent on important issues, without compromising the DUP’s position on the protocol.
Under new rules brought into force by the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022, the secretary of state for Northern Ireland would have to appoint a date for new assembly elections if a first minister and deputy first minister are not appointed within 24 weeks.
2.3 UK government position
The UK government’s position has been for some time that the protocol needs to be amended. It set out its case for reaching a “new balance” in a command paper published in July 2021. It argued the protocol was not delivering on some of its core objectives, “notably the explicit commitment to protect Northern Ireland’s place in the UK internal market and to avoid disruption to everyday lives”. The government maintained in the command paper that it was “clear that the circumstances exist to justify using article 16”. This is a provision in the protocol that allows either side to take “appropriate safeguard measures” if the application of the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. In the command paper, the government pointed to “significant disruption to longstanding trade flows between Great Britain and Northern Ireland”; “exacerbated […] perceptions of separation and threat to identity within the unionist community”, societal and economic impacts of the protocol on consumers and businesses; and political and community instability.
However, the government said it had concluded “that for the time being it is not appropriate” to exercise the UK’s rights under article 16, because of the limitations on the actions that can be taken under the safeguard mechanism. Article 16 states that safeguard measures “shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation”. The government noted that any unilateral measures under article 16 would be temporary and “subject to the uncertainty of an as yet untested dispute settlement process”.
In response, Maroš Šefčovič, vice-president of the European Commission, said the EU would continue to engage with the UK, but would “not agree to a renegotiation of the protocol”. Since then, talks have taken place between the UK and the EU. There has been some progress—for instance, the EU adopted legislation in April 2022 intended to ensure the continued supply of medicines to Northern Ireland. However, the talks did not resolve the main issues the UK raised in the command paper.
The government introduced a Northern Ireland Protocol Bill in the House of Commons on 13 June 2022. The bill would provide that specified provisions of the protocol (covering the movement of goods, customs duties between Great Britain and Northern Ireland, and state aid) no longer have effect in the UK. It would also give ministers the power to add other provisions of the protocol to this list. Only the protocol’s provisions on the rights of individuals (article 2), the common travel area (article 3) and other areas of North-South cooperation (article 11) would be explicitly protected from being set aside under this power. It would introduce new arrangements to replace some of the protocol’s requirements, which the government has summarised as follows:
- establish new “green channel” arrangements for goods staying in the UK—fixing the burdens and bureaucracy caused by the application of EU customs and SPS rules to all goods at present
- establish a new “dual regulatory” model to provide flexibility to choose between UK or EU rules—removing barriers to trade and managing risks of future divergence between UK and EU rules
- ensure the government can set UK-wide policies on subsidy control and VAT—overcoming constraints that have meant NI has not benefited from the same support as other parts of the UK
- deal with the protocol’s unequal governance, removing the role of the CJEU [Court of Justice of the European Union] in dispute settlement and providing the means for UK authorities and courts to set out the arrangements which apply in Northern Ireland
The bill also contains provisions to implement a negotiated agreement should one be reached with the EU, which the government states is its preferred solution.
The government argued the bill would “fix” problems with the protocol that were “undermining all three strands of the Belfast (Good Friday) Agreement and have led to the collapse of the power-sharing arrangements at Stormont”. The government also set out its legal position on the bill, arguing that “the doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited circumstances”. It argued that “the protocol currently stands as a barrier to forming a new executive in Northern Ireland” and that the protocol was placing “strain” on “institutions in Northern Ireland, and more generally on socio-political conditions”. It argued there was “clear evidence of a state of necessity to which the government must respond”.
2.4 Responses to the introduction of the Northern Ireland Protocol Bill
The EU disputes the government’s assessment of the protocol. Responding to the publication of the bill, Maroš Šefčovič maintained that the protocol “respects the constitutional position of Northern Ireland within the UK” and protects the Belfast-Good Friday Agreement in all its dimensions. He argued that the protocol was “the one and only solution we could jointly find to protect the hard-earned gains of the peace process in Northern Ireland, while addressing the challenges created by Brexit, and the type of Brexit chosen by the UK government”. He therefore said that renegotiating the protocol was “unrealistic”, but reiterated that the EU was willing to explore jointly with the UK further “flexibilities” in implementing the protocol. He said the European Commission would assess the bill, but suggested that unilateral action by the UK was “damaging to mutual trust”, could jeopardise Northern Ireland businesses’ access to the EU single market under the protocol, and could result in the EU bringing legal action against the UK for breaching its obligations under the protocol and the withdrawal agreement The European Commission announced on 15 June 2022 that it was launching infringement proceedings against the UK.
Introduction of the bill has not to date resolved the formation of a new executive in Northern Ireland. Sir Jeffrey Donaldson, leader of the DUP, described publication of the bill as an “important step”, but said it did not “deliver anything in and of itself”. He said that as the bill progressed through Parliament, his party would “consider […] what that means for devolution in Northern Ireland”.
Meanwhile, non-unionist parties in the Northern Ireland Assembly have expressed their strong objection to the government’s approach on the protocol. In a joint letter to the prime minister on the day the bill was introduced, the Sinn Féin, Alliance and Social Democratic and Labour Party (SDLP) members of the assembly said they represented a majority of MLAs and a majority of the votes cast in the recent election. They acknowledged that the protocol was “not ideal” but said it represented “the only available protections for Northern Ireland from the worst impacts of [a] hard Brexit” and offered “clear economic advantages” to Northern Ireland by giving it unique access to two major markets. They argued that the way to achieve “smooth implementation” of the protocol was through engagement with the European Union, not through the “unilateral abrogation of treaty obligations” and they rejected the government’s argument that its actions would protect the Belfast-Good Friday Agreement.
Further background about the Northern Ireland Protocol and its political impact can be found in the following briefings:
- House of Commons Library, ‘Northern Ireland Protocol’, 13 June 2022
- House of Commons Library, ‘Northern Ireland Protocol: Implementation grace periods and EU-UK discussions, 2021–22’, 1 June 2022
- House of Commons Library, ‘Northern Ireland elections: How will an executive be formed?’, 6 May 2022
- House of Lords Library, ‘Queen’s Speech 2022: Brexit—Retained EU law and the protocol on Ireland/Northern Ireland’, 5 May 2022
- House of Lords Library, ‘The Union between Great Britain and Northern Ireland: UK government policy’, 4 April 2022
- House of Commons Library, ‘Northern Ireland: Key issues’, 8 March 2022
- House of Lords Library, ‘Impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland’, 28 February 2022
- House of Commons Library, ‘Northern Ireland Protocol: Article 16’, 26 November 2021
2.5 Sinn Féin as largest party in the assembly: What does this mean for a border poll?
The May 2022 election saw the first time that a nationalist party became the largest party in the Northern Ireland Assembly, with the consequent right to nominate the first minister. This situation has given rise to some speculation about the question of a future border poll in Northern Ireland.
Sinn Féin describes a united Ireland as its “core political objective”. Its campaign for the assembly election focused on issues such as health, education, affordable homes and the cost of living. However, its manifesto did include some key priorities on “planning for unity”, including “securing a date from the British and Irish governments for the referenda on unity provided for in the Good Friday Agreement”. Speaking after the election, Mary Lou McDonald, Sinn Féin’s president, said she believed a border poll would be “possible within a five-year time frame” and that constitutional change would happen “in the course probably of the next decade”. She called on the UK government to indicate how it would measure when a border poll would be appropriate.
Under the terms of the Northern Ireland Act 1998, the secretary of state for Northern Ireland shall direct a poll to be held “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”. Brandon Lewis, secretary of state for Northern Ireland, implicitly ruled out the prospect of holding such a poll, setting Sinn Féin’s emergence as the largest party in the assembly within the broader context of the overall results. He noted Sinn Féin had won the same number of seats in 2022 as it had in the previous election in 2017. He said: “We haven’t seen a growth in the nationalist vote and indeed the unionist vote is still larger and the number of seats held by unionist parties is still larger”.
3. Scotland: A second independence referendum?
3.1 Opposing positions of UK and Scottish governments
Another current point of tension within the union is the Scottish government’s intention to hold a second referendum on the question of an independent Scotland. Scotland previously voted against independence by 55% to 45% in 2014. The UK government is opposed to a second referendum, arguing that the 2014 vote was a ‘once in a generation’ event, the outcome of which should be respected. Alister Jack, the secretary of state for Scotland, suggested in August 2021 that the UK government would agree to another independence referendum if opinion polls showed consistently that 60% of voters in Scotland supported holding one. Mr Jack later said these comments reflected the UK government’s position that “now is not the time to return to an all-consuming debate on the constitution”.
However, Nicola Sturgeon, Scotland’s first minister, has argued that Brexit represented “a significant and material change in the circumstances in which Scotland voted against independence in 2014”. She highlighted this was particularly so since Scotland voted to remain in the EU in the Brexit referendum in 2016.
The Scottish government is committed to a second independence referendum before the end of the current term of the Scottish Parliament in 2026. The Scottish National Party (SNP) manifesto for the May 2021 Scottish Parliament election included a pledge to hold an independence referendum after the Covid-19 crisis was over. The Scottish government and Scottish Greens cooperation agreement and shared policy programme similarly included a policy commitment to secure a referendum on Scottish independence after the Covid crisis. It stated this would be within the current five-year parliamentary session on a specific date to be determined by the Scottish Parliament. It said the intention would be for the referendum to be within the first half of the parliamentary session if the Covid crisis had passed. Nicola Sturgeon said in January 2022 that she would do “everything that’s within [her] power” to enable a referendum to happen before the end of 2023.
3.2 Legal powers for a referendum
There are debates over the legal powers under which a second independence referendum could take place. Successive UK governments have maintained that the power to legislate for a referendum is reserved to Westminster. However, while the Scottish government agrees that it cannot unilaterally end the union, it argues that the power to hold a referendum of some sort is within its devolved powers. The House of Commons Library briefing ‘Scottish independence referendum: Legal issues’ (15 June 2022) examines in more depth the legal issues surrounding this question.
The 2014 referendum took place on the basis of an agreement between the UK and Scottish governments, known as the Edinburgh Agreement, and a section 30 order made under the Scotland Act 1998. The order temporarily devolved authority to legislate for a Scottish independence referendum and, in the words of the Edinburgh Agreement, “put it beyond doubt that the Scottish Parliament can legislate for that referendum”.
Nicola Sturgeon wrote to Prime Minister Boris Johnson in December 2019 requesting a transfer of power to the Scottish Parliament, either by a new section 30 order or an act of the UK Parliament, to enable another independence referendum that would be “beyond legal challenge”. Boris Johnson responded in January 2020 that he would not agree to “any transfer of power that would lead to further independence referendums”. He said the UK government would “continue to uphold the democratic decision” made by the Scottish people in 2014.
The Scottish government argues that the 2021 election gave a “clear mandate” for the people of Scotland “to have a choice over their future”. Although the SNP did not secure a majority at the election, it has a cooperation agreement and shared policy programme with the Scottish Greens, whose election manifesto also supported independence and the holding of a referendum in the coming parliamentary session. The SNP had said prior to the election, in January 2021, that if there was a parliamentary majority to do so, it would introduce a bill to make the necessary arrangements for a referendum. It suggested that in these circumstances, the UK government would have to:
(1) agree that the Scottish Parliament already has the power to legislate for a referendum or (2) in line with precedent, agree the section 30 order to put the question beyond any doubt; or (3) take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts. Such a legal challenge would be vigorously opposed by an SNP Scottish government.
Following the election, the Scottish government’s ‘Programme for government 2021–22’ said it would “work to ensure that a legitimate and constitutional referendum can be held within this parliament”. It said the Scottish government would start work on a detailed prospectus for an independent Scotland to give people the information to make an informed choice. The Scottish government’s resource spending review, published in May 2022 and covering the next five years, allocated £20mn in 2023–24 for a referendum.
The Scottish information commissioner recently ordered the Scottish government to publish parts of the legal advice it has received about a potential second independence referendum. The Scottish government had refused to disclose the advice in response to a freedom of information request. It argued it would breach legal professional privilege. Following the information commissioner’s order, on 7 June 2022 the Scottish government published extracts of legal advice it had received in 2020, the timeframe specified in the original freedom of information request. The extracts stated that Scottish ministers could “lawfully undertake policy development work preparing proposals for independence and in calling for a transfer of power”. However, the published extracts did not address the question of whether it is within devolved competence to legislate for a referendum without a transfer of power. Other parties at Holyrood said it left unanswered key questions about the legal situation. They called on the SNP to be more transparent about how it planned to hold a referendum.
The Scottish government published a paper entitled ‘Independence in the modern world—Wealthier, happier, fairer: Why not Scotland?’ on 14 June 2022. It described the paper as a ‘scene-setter’, and the first in a series on ‘Building a new Scotland’ which together would form a prospectus for an independent Scotland. On the legal question of how a referendum could take place, Ms Sturgeon said that “to uphold democracy here in Scotland, we must forge a way forward, if necessary without a section 30 order”. She stated this must be done in a lawful manner, and she recognised the competence of the Scottish Parliament to legislate in these circumstances was contested. She said that work to navigate this situation was “well underway” and she would give a “significant update” to the Scottish Parliament very soon. Angus Robertson, the Scottish cabinet secretary for the constitution, external affairs and culture, said the Scottish government planned to hold a referendum in October 2023.
Cover image from Wikimedia.