Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit?

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In a previous blog post Sionaidh Douglas-Scott wrote about how the consent of the devolved assemblies would be required to remove references to EU law from the devolution legislation in the event of Brexit. Here, she considers what would happen if, fearing the constitutional crisis that may result, the UK government simply left the devolution legislation untouched. For the sake of simplicity and space, this blog restricts discussion to Scotland, although similar issues will pertain to Wales and Northern Ireland.

In a blog post published on this site earlier this week, I considered the requirement for the legislative consent of the Scottish Parliament when the UK parliament seeks to legislate in devolved policy areas, or seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish government. In the event of Brexit, these circumstances may arise with regard to the need to amend devolution legislation, such as the Scotland Act 1998, in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. However, suppose then that, desirous to avoid such constitutional consequences, the UK government decided not to propose legislation to amend the devolution statutes, but opted instead to leave them unchanged. What would be the impact of their doing this? Again we take Scotland as the working example.

At first sight, such a hypothesis seems ludicrously unworkable. Such a situation would require Scotland to act in compliance with EU law in any legislation it adopted in Holyrood within the scope of its devolved competences. So there would be a situation obtaining within a post-Brexit UK in which one regime operated for the Westminster parliament (no need to act compliantly with EU law) and a different regime in Holyrood, which according to s. 29(2)(d) of the Scotland Act 1998 would still have to act in compliance with EU law wherever it enacted its own devolved legislation. Although it would be technically possible to require compliance with EU law for Scottish legislation, even if the UK were not a member of the EU and were no longer bound by EU treaties, it would certainly be strange if a treaty that no longer bound the UK was still required under the devolution settlement. There are some precedents for voluntary compliance with treaties by non-contracting parties. For example, the EU in Art 6 TEU declares that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’, and the EU is not currently a contracting party to the ECHR (although all members of the EU are themselves contracting parties to the ECHR). Requiring the Scottish Parliament to comply with EU law would no doubt give rise to uncertainty: for example, post Brexit, how would ‘compliance’ with EU law be evaluated, and would interpretations by the Luxembourg Courts be taken into account?

There might be a question of why Holyrood would wish to curtail its competence in this way – however, as Holyrood has to date had to act within the confines of EU law, this would not mean a massive change of circumstances. Furthermore, the development of different policies within different parts of the UK complies with the logic of devolution, and the ‘varied geometry’ of legislation that it permits. Within its devolved competences Scotland is free to enact its own legislation, according to its own policies and objectives, providing it complies with the requirements of the devolution legislation. However, it is notable that, unless further legislation were enacted, in the absence of the European Communities Act (ECA) 1972, EU law would lack direct effect in Scotland. Because the UK operates a dualist system, international law obligations must be implemented by national legislation to become enforceable in UK courts. So an unamended s. 29(2)(d) would require legislation to comply with EU law, but would be insufficient to give individuals directly enforceable rights.

Nonetheless, absent repeal of s. 29(2)(d), Holyrood would have to comply with EU law wherever it acted within its devolved competences. So we need to look at what are the Scottish Parliament’s devolved competences and which of these fall within the scope of EU law. The Scotland Act 1998 separates devolved from reserved competences. However, rather than specifically listing the Scottish Parliament’s devolved powers, Schedule 5 of the Scotland Act specifies the matters which are reserved to the UK overall – so for example, the UK constitution, and foreign affairs (from which EU obligations are specifically exempted by Scotland Act 1998, Schedule 5 Part 1(7)) are reserved. The crucial matter then is to identify which areas of devolved competence overlap with EU competences under the EU treaties –and areas such as agriculture, fisheries, the environment, aspects of the single market, justice and legal affairs are key competences at issue, but there are others.

Implications

The remainder of this blog considers some examples of conflict between Scottish devolved powers and EU law and the implications in a post-Brexit UK. So, for example, current EU Common Fisheries Policy rules operate a discard ban on Scottish fish. This ends the practice of throwing dead fish back overboard. Fishing vessels now have to land all the fish limited by quota which they catch. However, there has been some opposition to this from UK (including Scottish) fishing industries who complain that they have to bear the cost of this landing obligation. If s. 29(2)(d) were not amended, presumably Scottish fishing would still have to comply with this ban, although, at the very least, English would not.

A recent and high profile case, involving the setting of minimum pricing for alcohol, provides a further good example. In May 2012, the Scottish Parliament passed legislation (Alcohol (Minimum Pricing) (Scotland) Act 2012) setting a minimum price of 50 pence per unit of alcohol in order to deal with perceived detrimental effects to health of cheaper alcohol. The Scotch Whisky Association challenged this legislation as a restriction on the EU single market, and a reference was made to the Court of Justice in Luxembourg. The Court of Justice, in the 2015 Case C-333/14 Press and Information Scotch Whisky Association and Others v Lord Advocate held that the effect of the Scottish legislation was significantly to restrict the market, which might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol. If s. 29(2)(d) SA 1998 were repealed, then Scotland would be able to set its minimum alcohol pricing rules free from the constraints of EU law (absent any alternative trading arrangement with the EU, such as EEA membership.)

If the UK were no longer a member of the EU, then recourse by the preliminary reference process to the European courts in Luxembourg would no longer be possible and this would be a matter for domestic courts to decide. However, the issues would remain the same if the Scotland Act were unamended.

Another potential example is that of fees set for courses at Scottish universities. At present, Scottish students are not charged fees at Scottish universities, and so neither are EU students studying in Scotland, because of the prohibition on discrimination on grounds of nationality under EU law (although English students are charged fees, because internal discrimination within a member state is possible under EU law). Following Brexit, the Scottish government might decide that it wished to raise income by charging fees for EU students and, this being a devolved matter, adopt legislation accordingly. However, would this be ‘in compliance’ with EU law, or would it infringe s. 29(2)(d) Scotland Act?  Determining whether charging for EU students did indeed breach EU law might be complex, as the Scottish government might claim such a measure was justified under recognised grounds of EU law. For example, in Case 73/08 Bressol the Belgian Government attempted to claim that discrimination against French students was justified on grounds of the excessive burden on public finances, although the claim did not succeed in that case. Post-Brexit, a reference to the ECJ for determinative resolution of the issue would not be possible, and so, if litigated, Scottish courts (or maybe the UK Supreme Court) would have to determine the issue. But another concern would be who would be able to bring such a case? If an EU student were to start an action based on the requirement of non-discrimination on grounds of EU law, such a claim might be hard to pursue, given that EU law would no longer have direct effect in the UK, absent the ECA. They might however, if they satisfied Scottish standing rules, be able to bring an application for a judicial review on the ground that the legislation was unlawful for non-compliance with s. 29 of the Scotland Act. Such an action might not provide an adequate remedy for an individual, however.

These examples might suggest that the requirement to comply with EU law limits the competence of legislatures, and some would therefore welcome its removal. However, there might be all sorts of reasons why Scotland would wish to continue to comply with EU law within the sphere of its devolved competences – the desire for future EU membership of a possible independent Scotland might be one example. Scotland might wish to continue to attract high calibre students from the EU to foster migration and free movement and eschew any raising of fee income in this way. Other areas of EU law might in any case prove attractive on their own account. For example, the EU Charter of Fundamental Rights is another example of binding EU law, which has the same status as the EU treaties. Although its field of application is quite complex, it clearly applies to member states when acting within the scope of EU law and Scottish legislation must, therefore, presently comply with it in areas falling within the scope of EU law. It is notable that the Charter has a wider scope than the ECHR and covers more rights. For example, the Solidarity chapter in the Charter contains many social rights and principles not to be found in the ECHR. But the Charter contains other rights not to be found in the ECHR aside from social rights – such as a guarantee of human dignity; a right to physical and mental integrity; a prohibition on human trafficking; the right to conscientious objection; a right to marry that is not restricted to different-sex couples; a right to asylum; data protection rights; and a fair trial guarantee that is not restricted to civil and criminal cases. It also provided the basis for the right to be forgotten elucidated by the European Court of Justice in the 2014 Google Spain case.

Although, again, adherence to the EU Charter is capable of restraining the scope of action for legislation by the Scottish Parliament, this might be perceived as nonetheless attractive in terms of adherence to a more progressive, up to date and wider bill of rights than that of the ECHR.

Concluding thoughts

So, in conclusion, Brexit provides some pitfalls and problems for the devolution settlement, and the issue of legislative consent brings with it the prospect of constitutional crisis. Should devolved nations refuse consent to amendment of devolution statutes, some severe constitutional problems might be foreseen. The UK government might even opt to avoid these by simply leaving devolution statutes unchanged. Such an event would bring complexities and legal problems, but also some potential advantages, especially for those devolved nations that saw a containing obligation to abide by EU law as stepping stone to independence in the EU.

The Constitution Unit has published a briefing paper, written by Robert Hazell and Alan Renwick, on Brexit: Its Consequences for Devolution and the Union.

About the author

Professor Sionaidh Douglas-Scott is Anniversary Chair in Law at Queen Mary University of London.

7 thoughts on “Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit?

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