In the event of Brexit, there will be pressing devolutionary matters to be addressed. One of these concerns the issue of the legislative consent of the devolved nations to the amendment of devolution legislation in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. In this post Sionaidh Douglas-Scott discusses this. For the sake of simplicity and space this blog restricts discussion to Scotland, although similar issues will pertain to legislative consent in Wales and Northern Ireland.
If there is a vote to leave the EU in the referendum on June 23, then the UK would need to commence proceedings to withdraw from the EU under Article 50 TEU. Art 50(3) states that after expiry of certain time periods the Treaties ‘shall cease to apply to the State in question.’ However, this would not be enough to remove the impact of EU law in the UK. It would also be necessary to repeal or amend the European Communities Act (ECA) 1972, which is the statute giving domestic effect to EU law in the UK.
Nor would this be an end to matters. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. Therefore, although the Westminster parliament may repeal the ECA 1972, this would not bring an end to the domestic incorporation of EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis.
Lord Norton of Louth argues that the Strathclyde Review recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments. Instead of rushing into wider changes the immediate response to October’s tax credits controversy should be to address the inconsistency in the way Commons financial privilege is recognised in relation to SIs. In the longer term there is a case for a wider review of how both houses deal with secondary legislation.
The report produced by Lord Strathclyde is based on two propositions. First, that there is a convention that the House of Lords does not vote to reject statutory instruments. Second, that the problem of the vote on 26 October last year, when the House withheld agreement to the Tax Credits Regulations, is one of failure to comply with that convention. Both propositions are false, the second necessarily so given that the first has no basis in fact.
There is much misunderstanding of what constitutes a convention. They are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour. Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, right behaviour.
Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998. They are not created, but develop. A convention exists once there is an invariable practice. That is not the same as standard or usual practice. If one deviates from it, it is not an invariable practice. Kenneth Wheare distinguished between conventions and usage. I think it more appropriate to distinguish between invariable and usual practice.