How the UK and devolved governments can agree on the European Union (Withdrawal) Bill

_MIK4650.cropped.114x133

With the EU Withdrawal Bill now in the House of Lords, Clause 11 of the bill is expected to be a cause of potential trouble for the government. The Scottish and Welsh governments, as well as the Labour Party, are all currently opposed to the clause as currently drafted and it seems unlikely it will survive the Lords in its present form. Akash Paun explains the concerns of Edinburgh and Cardiff in this blog and proposes a number of possible solutions, each of which will require compromise on all sides.

The UK government is locked in dispute with the Scottish and Welsh governments over Clause 11 of the EU Withdrawal Bill. This clause prevents the devolved administrations from modifying ‘retained EU law’, the term for all the European legislation the bill will bring into domestic law.

The effect would be that all powers exercised in Brussels return to Westminster, at least initially, giving the UK parliament the ability to create binding legal frameworks in place of EU law. The devolved governments say this is unacceptable, and Edinburgh and Cardiff have refused to grant legislative consent to the bill.

The government accepts that Clause 11 needs to be amended, but it has not brought forth alternative proposals, despite promising to do so before the bill left the House of Commons. Meanwhile, the Scottish and Welsh Governments propose that Clause 11 should simply remove the requirement for devolved bodies to act in accordance with EU law. Full control of the 100-plus areas of ‘intersection’ between EU and devolved law would then revert to the devolved level.

In this case, new UK-wide frameworks would have to be negotiated on a case-by-case basis and could not be unilaterally imposed by Westminster. The concern in Whitehall is that this would increase the risks of legal uncertainty and regulatory divergence, and could make it more difficult to implement a new UK-EU economic relationship.

The bill has now entered the House of Lords with the UK and devolved governments still dug into their trenches. Recent reports suggest, however, that a peace deal may be within reach. Continue reading

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill

tierney2

The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

Continue reading

As devolution has progressed the centre has failed to imagine a new rationale for the union

outfile7871

In 1999 The Constitution Unit produced a book which set out to forecast what the UK’s constitution would look like in ten years’ time. Sixteen years on, Charlie Jeffery tests the predictions and uses them to assess the direction of devolution in the UK today.

This is the fourth of a series of posts adapted from presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Constitutional Futures: A History of the Next Ten Years, a book edited by Robert Hazell, was published in 1999. It set out to predict how events would unfold following the initial stages of Labour’s constitutional reform programme. The question is, how fares that history sixteen years on? On page seven of the book there is a table which outlines ‘mini’ and ‘maxi’ versions of constitutional change, which I will draw on in order to assess where we stand now with respect to devolution.

Turning first to Scotland, Wales and Northern Ireland, the mini version predicts that the devolved institutions will stay as they were founded. The maxi option is a move towards legislative and tax raising powers everywhere and the possibility of an independent Scotland. We are headed towards the maxi version in Scotland certainly, in Wales increasingly and in Northern Ireland less so.

Continue reading