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

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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

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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’.

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The Scottish government’s Brexit paper suggests that the last thing Nicola Sturgeon wants is an independence referendum

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Yesterday the Scottish government published a detailed policy paper, setting out options for how Scotland could remain in the EU single market following Brexit. In this post Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK  and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

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