Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’.

One person’s dog-wagging is another’s quasi-federal distribution of powers. When the devolution settlements were designed, the new administrations had little or no leverage over the UK government. But they will now, and that is rebalancing the territorial constitution in favour of more devolved power, leading to a less centralised UK. It will be more ‘federal’ because central government will have to treat with the other UK governments, some of the time, to get its way.

The Whitehall reaction: less than you might think

Whitehall, perhaps conditioned by unreflective assumptions of parliamentary sovereignty (poorly understood as unconstrained power) initially, and predictably, reacted against this. Its first reaction was to seek to reserve the powers coming back from Brussels, so-called ‘retained EU law’. Clause 11 of the EU Withdrawal Bill did this and conferred power to devolve it, piece by piece, once replacement UK frameworks were sorted out. This ‘land grab’ provoked outrage in both Scotland and Wales. In the end, as negotiations dragged on, both Scottish and Welsh governments introduced their own competing Continuity Bills – each now mired in the Supreme Court.

Clause 11 was an over-reaction, but the UK government’s position has gradually moved, now by quite a long way. In amendments being considered by the Lords this week the government proposes taking a power to compose a list of reservations during the transition period. Holyrood and Cardiff will be consulted on these, but without a veto. Each reservation is explicitly temporary. All are subject to a sunset clause: the government would have two years in which to draw up their list, and no regulation reserving anything may last longer than five years.

The argument made for temporary reservation is to enable those replacement UK frameworks to be created, thereby facilitating an orderly EU withdrawal. Even this may arguably be unnecessary, as the UK government will hold most of the cards in discussing such frameworks in any event. Additionally, the devolution settlements include powers for the UK government to require the devolved administrations to act and even to introduce legislation so as to meet international obligations. So the UK government will have plenty of influence over, say, agriculture, despite it being devolved, because of the link to of trade deals with Europe or other countries.

Nevertheless if reservation is only temporary, then in practice the devolved administrations will have a veto over the proposed UK frameworks: after all, they will be able in due course to legislate to reverse them if they don’t like them. So from the point of view of the integrity of the devolution settlement, temporary reservation is hardly an act of demolition; it is merely a delay in extending effective competence. Having myself proposed a sunset clause I can only welcome it.

A better argument for temporary reservation is the transition period itself. During that period, which may well be extended, large chunks of European law will continue to apply, notably the single market regulations. Indeed it’s still not absolutely beyond the range of possibilities that single market rules will apply thereafter as well. The legal mechanisms will presumably be a new Treaty backed up by something that looks suspiciously like the European Communities Act 1972, with a regulation-making power. So it makes little sense to devolve things still subject to EU rules. What’s more surprising in all this is that the UK government isn’t arguing for any permanent reservation of any aspect of EU law at all. That dog may bark one day.

Intergovernmental arguments

In what were clearly painful and protracted negotiations, the UK government shifted their position substantially, from wholesale to ‘pick and mix’ reservation. This was good enough for Cardiff, which has concluded that some temporary reservations, while irksome, are not contrary to the principles of the devolution settlement. They are now prepared to accept the rather elaborate procedural safeguards proposed in the government’s amendments, maybe in the interests of getting on to discussing the substantive issues like agriculture or the replacement of the structural funds. If the Welsh Continuity Bill survives the Supreme Court, it will be repealed.

The Scottish government’s position remains purist. Any reservations must be consented to individually, and there can be no agreement to reservation, however temporary, without consent. They do not say reservations may never happen, although the SNP have long taken the view that no power exercised at Holyrood may ever be ‘taken back’. Back in 2014, for example, they offered serious objection to the loss of a theoretical capacity to legislate for Antarctica. So they are likely to persist in their Continuity Bill, even though they have lost control over it as its parliamentary process is over and it sits with the Supreme Court.

Crisis, what crisis?

Intergovernmental relations are clearly not good, at least at ministerial level. Despite rumours that he was prepared to accept the deal along with the relevant Welsh minister, but was overruled, Scottish minister Mike Russell says that trust between the two governments has broken down over this issue. On the other side, Tory MSPs accuse the SNP not of protecting devolution but promoting nationalism.

Maybe this is indeed simply political grievance-seeking by SNP ministers, though if it is, it’s a grievance of some obscurity. Or maybe it’s brinkmanship to wring further protective concessions from the UK government. Most likely, some stronger safeguards could be devised in the Lords. Perhaps shortening the sunset clause length, perhaps linking temporary reservation without consent to areas where international obligations are engaged and UK minsters already have override powers. But agreement needs movement on both sides, and the Scottish First Minister has shown little sign of any flexibility in her position.

So we might yet end up with competing Brexit continuity legislation if anything in the Scottish Bill gets past the Supreme Court. That however is no constitutional crisis. It’s a conflict of laws that the courts would have to sort out; most likely, the last one to be enacted will win, and that will probably be the UK Act. There is however a bigger picture, and a more significant constitutional issue. If the Scottish government keep taking a purist approach on the detailed issue of temporary reservation, which in the end doesn’t matter all that much, they might push Westminster into overriding devolved consent on the Withdrawal Bill as a whole. That really does matter. It is wrong in principle, and certainly does not strengthen devolution, but it’s not illegal and, just at the moment, looks politically possible. If they really want to protect devolution, Scottish Ministers should go the extra mile to avoid such a bad precedent being set.

About the author

Jim Gallagher is Gwilym Gibbon research fellow at Nuffield College, Oxford and a Visiting Professor at the University of Glasgow.

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