Removing references to EU law from the devolution legislation would require the consent of the devolved assemblies

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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.

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Legislative consent from Wales, or not: blocking Police and Crime Panels

There was an interesting development in Wales last week, when the National Assembly voted against giving its legislative consent under the Sewel convention to the Westminster legislation creating Police and Crime Panels.  These are part of the proposals for elected police commissioners that are the centrepiece of the Coalition government’s Police Reform and Social Responsibility bill.

This is the first time a Westminster bill has been denied legislative consent under the Sewel convention – this has never happened to any bill affecting Scotland.  The reason is partly to do with party politics – while Conservative and Lib Dem AMs supported the UK bill, it was opposed by Labour and Plaid Cymru.  It’s also to do with what looks like legislative laziness, as the Police and Crime Panels are constituted as local authority committees (the bulk of their members will be councillors, but they’re not constitutionally part of any local authority).

Having got into this jam, the initial indications are that Home Office intends simply to insist that Westminster, as the sovereign parliament, has power to enact the legislation despite the National Assembly’s views.  As I’ve explained in a detailed post on Devolution Matters available HERE, that would be a grave mistake.  It would seriously upset the constitutional relationship between the devolved legislatures and UK Parliament, and risk a very messy legislative situation.  Moreover, with the Scotland bill under consideration at both Westminster and Holyrood, it would raise the stakes relating to that as well.