COVID-19: the relaxation of measures and the multinational UK
In the UK, the COVID crisis has only served to exacerbate the problems within a system of ad-hoc, asymmetric federalism. Put simply, the approaches in the different countries of the UK have diverged for no good reason. This blog is intended to show the inconsistencies across the UK nations, briefly contextualising this within an uneven constitutional settlement and a lack of cooperation between the UK nations.
Britain’s uneven devolution arises from the uneven nature of the United Kingdom. England accounts for around 85% of the UK population and is the location of the British Parliament and Government. England is the only nation of the UK without its own devolved institutions. In effect, therefore, the British Government has a dual role as the central government for all four nations of the UK in areas such as external affairs, and as the English government in other areas. The UK model of devolution did not include any framework for intergovernmental relations, or create any kind of formal oversight in London. The lubrication for the devolved system is instead constitutional convention and a reliance on good relations between the British Government and the devolved administrations. Joint ministerial committees are used to ensure a joined-up approach across the UK – for the purposes of this blog, the relevant committee is Cobra, or the Civil Contingencies Committee, which brings together members of the British and devolved governments at times of emergency.
The Brexit process had, however, created an atmosphere of distrust between the UK nations. As is well known, Wales and England voted to leave the EU and Scotland and Northern Ireland voted to remain. As the process of exiting the EU got underway, leaders if the devolved nations complained about not being involved in the decision-making process, or not even being informed about decisions taken by the British Government. In the context of a system which relies on a spirit of cooperation, this break down in trust is deeply problematic.
Initial Measures in Response to COVID-19
Coronavirus, therefore, came at a time of tension in the British constitution. The UK entered a state of ‘lockdown’ on the 23rd of March. Health is a devolved matter and each administration sets its own policy, with additional ‘emergency’ powers granted to deal with the COVID pandemic. The broad sweep of the regulations adopted was the same across the UK and messaging was an area of unity, with all governments adopting the slogan ‘Stay Home. Protect the NHS. Save Lives’. In addition, Cobra meetings were held on a three-weekly basis to ensure that the UK nations remained in step with one another with regarding the response to COVID-19.
The Easing of Restrictions
On the 10th of May, Boris Johnson made a television address to announce the easing of some lockdown measures. Among other things, garden centres could open, some sports were permitted and the requirement that going outside was only for exercise was relaxed. Johnson’s statement did not make clear that the changes only applied in England. This led to confusion: for example, there were farcical scenes at the Anglo- Welsh border, with English day trippers unaware of the differing rules in Wales turned away by Welsh police. The messaging of the British Government also changed. The slogan of ‘Stay Home’ was dropped in favour of ‘Stay Alert’, and a shift in tone was made to encourage people to go back to work. Wales, Scotland and Northern Ireland did not change the slogan and kept ‘Stay Home’. These changes appear to be the public face of a breakdown in cooperation and communication between the British and devolved governments. As pointed out by Jack Sheldon and Michael Kenny, the split between governments had two main causes: on one side, the devolved nations became reluctant to follow the increasingly unpopular course of the British Government. On the other side, there still a ‘sense of unease’ in London about devolution and the loss of authority by the British Government. The second point seems particularly relevant now: this week, it was revealed that the British Government had not held a Cobra meeting for over a month – since the day of Boris Johnson’s public statement. The reason for this was resistance against the decisions of the British Government by the devolved nations.
At present, the easing of lockdown restrictions is varying in pace across the UK. For example, in Scotland garden centres were allowed to open on 28th May, 18 days after England. Non-essential shops opened in England on the 15th of June, but remain closed in the rest of the UK. There is no reason for these differences across the UK beyond the policy decision of each government. The differing nations of the UK are presently governed by different parties: Wales has a Labour controlled coalition, Scotland a pro-secession Scottish National Party minority government, NI has power sharing between the Democratic Unionist Party and Sinn Fein and in England the Conservatives form the British Government. It appears that the different political instincts of each ruling party are leading to the varying processes of lockdown easing across the UK. Due to the reliance on convention as opposed to an entrenched constitution, it would appear that the political instincts of the British Government can be particularly damaging.
A proper settlement is needed to facilitate cooperation between the nations of the UK. The present system, with no sort of federal oversight, no formal shared rule, and one Government acting as both the English and British Government has failed the stress test of COVID-19. Welsh First Minister Mark Drakeford captured the problem when he described the decision of the British Government to cease Cobra meetings, saying it removed the ‘scaffolding you need to make a success of the United Kingdom’. If the whims of Boris Johnson can do such damage, then a more formal federal system may be necessary.
1 See also Gallagher, J Coronavirus and the Constitution 27/05/2020 at https://centreonconstitutionalchange.ac.uk/news-and-opinion/coronavirus-and-constitution
2 The Coronavirus Act 2020; for a breakdown see Coronavirus and devolution at https://www.instituteforgovernment.org.uk/explainers/coronavirus-and-devolution
3 For more detail see Hickman, T A very English lockdown relaxation 14/05/2020 at https://ukconstitutionallaw.org/2020/05/14/tom-hickman-a-very-english-lockdown-relaxation/
4 See e.g. Police turn away people travelling to Pembrokeshire from England over weekend 17/05/2020 ITV News at https://www.itv.com/news/wales/2020-05-17/police-turn-away-people-travelling-to-pembrokeshire-from-england-over-weekend/
5 Sheldon, J and Kenny, M Why have the UK’s governments diverged on easing lockdown? 11/05/2020 at https://centreonconstitutionalchange.ac.uk/news-and-opinion/uks-governments-diverged-easing-lockdown