The European Union (Withdrawal) Bill: legal implications for devolution

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The European Union (Withdrawal) Bill will begin its second reading in the House of Commons today. In this post Stephen Tierney considers the bill’s legal implications for devolution, noting that as currently drafted it will be almost impossible to articulate the boundaries of devolved competence once the Act has come into force.

The European Union (Withdrawal) Bill (‘the bill’), introduced into parliament on 13 July, will begin its second reading in the Commons today. Already constitutional problems are piling up, not least a potential impasse with the devolved legislatures. The bill has been called ‘a naked power-grab’ and ‘an attack on the founding principles of devolution’ in a joint statement by the First Ministers of Scotland and Wales. They also made clear that they will not recommend legislative consent for the bill as it stands. Michael Keating has addressed the policy implications of the bill on this blog. In light of discussions with UK and devolved parliamentary committees and other policy-makers over the summer, this post will consider the legal implications of the bill for the territorial constitution, in particular the changes it makes to devolved competence and the ramifications of the enormous secondary powers given to UK ministers.

The bill (clauses 10 and 11), makes provision for devolution, amending the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 in order to circumscribe closely the exercise of devolved powers in relation to the UK’s withdrawal from the EU. These provisions need to be read in light of two other sets of provisions within the bill. Those which seek to convert EU law into domestic law (clauses 2-6); and those which give powers to UK ministers and to the devolved administrations inter alia to change ‘retained EU law’ and to give effect to the withdrawal agreement by way of secondary powers (clauses 7-9).

Altering competence

All of this requires some brief contextualisation. The bill will of course repeal the European Communities Act 1972 (‘the ECA’) and end the supremacy of EU law across the UK. But in doing so, it will not expunge the vast body of EU law from the statute book. Instead it converts EU law as it exists at the moment of the UK’s withdrawal into domestic law; creating the new category of ‘retained EU law’. The competence of the devolved legislatures will upon passage of the Withdrawal Bill be redrawn by this category of ‘retained EU law’. Clause 11, in amending the three main devolution statutes, in effect puts ‘retained EU law’ beyond the competence of the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. For example, the existing provision in the Scotland Act 1998 (s.29(2)(d)) that denies the Scottish Parliament competence to legislate incompatibly with EU law, is replaced with an equivalent restriction in relation to ‘retained EU law’.

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The electoral system for an English Parliament: options and implications

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Ongoing Constitution Unit research is exploring options for an English Parliament. One essential question for such a body is the choice of electoral system. In this post Jack Sheldon and Meg Russell focus on the possible implications of using FPTP as compared to using AMS or another proportional system. They conclude that the choice of system would have substantial effects on an English Parliament’s likely political dynamics.

Since last autumn we have been working on a research project exploring the options for an English Parliament. Although there have been various calls over the last 20 years to establish such a body, how might it actually work in practice? One question that would need to be addressed is the choice of electoral system. In this post we focus on the possible implications of alternative systems.

Models for an English Parliament and likely electoral systems

Our research has identified two primary models for an English Parliament. Some proponents, including Conservative MPs John Redwood and Andrew Rosindell, want a ‘dual mandate’ body, whereby members of the UK House of Commons sitting for English constituencies would meet as the English Parliament on certain days. This clearly implies that members of the English Parliament would be chosen by first past the post (FPTP), at least so long as it continues to be used for UK general elections.

The alternative model is for a separately-elected English Parliament, equivalent to the existing devolved legislatures elsewhere in the UK. Proponents of this kind of change have generally said little about the choice of electoral system. FPTP has not been used for any new institutions in recent years and so a proportional system is more likely. AMS is used in both Scotland and Wales, and given these precedents it seems the most likely system to be adopted. A major part of the rationale for establishing an English Parliament is to bring more coherence and symmetry to the UK’s constitutional arrangements. UKIP’s 2017 election manifesto, which included a proposal for a separately-elected English Parliament, explicitly suggested that an English Parliament should be elected under AMS, while in correspondence  with the authors senior Campaign for an English Parliament figures have stated that ‘the electoral systems for all the devolved administrations should be the same’.

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Legislation at Westminster – and how parliament matters more than many people think

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The Westminster parliament is famous throughout the world, but often presented as relatively non-influential when it comes to making the law. Meg Russell and Daniel Gover‘s new book Legislation at Westminster is the most detailed study of the British legislative process for over 40 years, and challenges these assumptions. Here the authors summarise their findings on how different groups of actors at Westminster exercise subtle and interconnected influence, contributing to what they dub ‘six faces of parliamentary power’.

The Westminster parliament inhabits one of the most famous buildings in the world – emblematic both of Britain and of stable democracy. Yet when it comes to policy-making, and particularly to making the law, many see Westminster as relatively non-influential. In the popular media, parliament is frequently portrayed as a mere ‘rubber stamp’, where a docile Commons majority approves what government puts before it. Among academic authors views are generally more nuanced, but a mainstream public policy textbook nonetheless claims that ‘parliament plays only a limited role in decision-making in the British Westminster model’, while a recent British politics textbook suggests that ‘the House of Commons is misunderstood if viewed as a legislator’. Even scholars who celebrate parliament present the early stages of initiating and formulating legislation as ‘overwhelmingly a government-centred activity’. Despite the ostensibly central role of the ‘legislature’ in the legislative process, these specialists instead emphasise parliament’s other crucial functions, such as representation, scrutiny and legitimation.

Perhaps because it is thought likely to be fruitless, but also due to the painstaking work involved, until recently no large-scale study had been conducted on influence in the Westminster legislative process since Griffith’s classic 1974 Parliamentary Scrutiny of Government Bills. Griffith’s key finding was that many government amendments proposed to bills in parliament in fact responded to earlier proposals from non-government parliamentarians – showing that influence was more complex than it seemed. A major Constitution Unit project, funded by the Nuffield foundation, sought to explore how these dynamics may have changed, and specifically whether the ‘rubber stamp’ claim is correct. Our early quantitative results, based on study of over 4000 amendments to 12 case study bills passing through parliament during the period 2005-12, showed that it was not. The majority of government amendments with substance were traceable to parliamentary pressure, while the ‘failure’ of non-government amendments could not be taken at face value. Our newly-published book, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law, tells a fuller story, drawing not only on amendment analysis, but also wider documentary analysis, and over 100 interviews with those closely involved in the passage of the 12 bills.

Part of the difficulty in assessing parliamentary influence is common perceptions of power. Looking for on-the-record changes wrought by parliament provides only a very narrow view. But it is often acknowledged in the politics and international relations literature that power takes many forms. One classic account suggests that it has three distinct faces, others that it has four or more; there are notions of hard and soft power, persuasive versus coercive power, and the ability to exercise power both positively and negatively. Such alternative conceptions have rarely been teased apart when discussing the power of parliaments.

Our study is organised by the various ‘actors’ in the policy process at Westminster, each of whom has a dedicated chapter. After introducing the basics of the legislative process and the case study bills, we go on to describe, using numerous quotations and examples, the diverse contributions that these actors make. This post provides a very short summary of our findings.

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