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

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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To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

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Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit?

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In a previous blog post Sionaidh Douglas-Scott wrote about how the consent of the devolved assemblies would be required to remove references to EU law from the devolution legislation in the event of Brexit. Here, she considers what would happen if, fearing the constitutional crisis that may result, the UK government simply left the devolution legislation untouched. For the sake of simplicity and space, this blog restricts discussion to Scotland, although similar issues will pertain to Wales and Northern Ireland.

In a blog post published on this site earlier this week, I considered the requirement for the legislative consent of the Scottish Parliament when the UK parliament seeks to legislate in devolved policy areas, or seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish government. In the event of Brexit, these circumstances may arise with regard to the need to amend devolution legislation, such as the Scotland Act 1998, in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. However, suppose then that, desirous to avoid such constitutional consequences, the UK government decided not to propose legislation to amend the devolution statutes, but opted instead to leave them unchanged. What would be the impact of their doing this? Again we take Scotland as the working example.

At first sight, such a hypothesis seems ludicrously unworkable. Such a situation would require Scotland to act in compliance with EU law in any legislation it adopted in Holyrood within the scope of its devolved competences. So there would be a situation obtaining within a post-Brexit UK in which one regime operated for the Westminster parliament (no need to act compliantly with EU law) and a different regime in Holyrood, which according to s. 29(2)(d) of the Scotland Act 1998 would still have to act in compliance with EU law wherever it enacted its own devolved legislation. Although it would be technically possible to require compliance with EU law for Scottish legislation, even if the UK were not a member of the EU and were no longer bound by EU treaties, it would certainly be strange if a treaty that no longer bound the UK was still required under the devolution settlement. There are some precedents for voluntary compliance with treaties by non-contracting parties. For example, the EU in Art 6 TEU declares that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’, and the EU is not currently a contracting party to the ECHR (although all members of the EU are themselves contracting parties to the ECHR). Requiring the Scottish Parliament to comply with EU law would no doubt give rise to uncertainty: for example, post Brexit, how would ‘compliance’ with EU law be evaluated, and would interpretations by the Luxembourg Courts be taken into account?

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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 in Wales

Alan Trench discusses the Sewel convention’s application to Wales and the implications of this for the current debate about Welsh devolution. He argues that were the recently introduced draft Wales Bill to be enacted without the Assembly’s consent, it would lead to a major constitutional crisis, and that the idea of holding a referendum on the devolution of income tax without the Assembly’s consent is also a constitutional non-starter.

The Sewel convention has rightly come to be seen as key to the working of devolution in the United Kingdom. It may have first been envisaged as a way of enabling Westminster to continue to legislate for devolved matters and maintain something like the practical pre-devolution status quo in policy-making, when convenient and politically acceptable, but it was quickly understood to mean more than that.

One reason may be that devolved legislative powers are more far-reaching than was at first appreciated. More important, though, is the emergence of the ‘constitutional’ dimension of the convention. The wording used in the Memorandum of Understanding (first agreed in 1999 and not changed since then) may refer to ‘the UK Parliament … not normally legislat[ing] with regard to devolved matters except with the agreement of the devolved legislatures’, but Devolution Guidance Note 10 on Post Devolution Primary Legislation regarding Scotland has been clear that consent is also required where there are changes to the functions of the Scottish Executive/Government or Parliament.  This means that functions cannot be removed from the devolved tier of government without its consent.  It also means functions cannot be added without consent, meaning that the UK tier cannot get rid of inconvenient functions, or transfer them without adequate funding, if a devolved legislature objects.

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Michael Moore, the Scottish Affairs Committee and the Scotland bill

When Michael Moore, the Scottish Secretary, gave evidence to the Commons Scottish Affairs Committee last week, he largely played a straight bat and avoided giving much away.  But late in the session (which is still recycling periodically on the BBC Parliament channel), he made two pretty startling statements.

One was to announce that the UK Government wouldn’t necessarily respect the Sewel Convention if the Scottish Parliament requested ‘fundamental’ changes to the Scotland bill – say, increasing the devolved income tax power from 10 points to 15 – which the UK Government didn’t wish to make.  Rather, it would push the bill through regardless.

This is startling because the Sewel Convention is the foundation on which devolution rests.  The Convention provides that the UK Parliament will not legislate for devolved matters without the consent of the devolved legislature involved.  While there’s an ambiguity about how it affects the UK Parliament, the UK Government has clearly committed itself to the Convention in the Memorandum of Understanding.   The Convention is a powerful and ingenious constitutional tool, which squares the circle between a division of power set out in a written constitution and then set in stone, as in most federal systems, and the principle of the sovereign UK parliament conferring legislative powers on other legislatures.  It rebuts Enoch Powell’s claim that ‘power devolved is power retained’, and makes devolution a viable alternative for a country with an unwritten constitution.   The saving clause in it (it talks of the UK Government ‘normally’ complying with devolved wishes should only be used in the direst of emergencies – not a case where there’s a serious constitutional disagreement between the Scottish Parliament and UK Government over the nature of devolved powers.

Moore’s other statement relates to clause 23 of the Scotland bill, a curious provision that enables UK Ministers to act regarding devolved matters if that is to fulfil a UK international obligation.  The Command paper explaining the bill offered no clear rationale for this.  The trigger turns out to be two cases where the Scottish Government took a year longer than the UK Government to implement agreements concerning two minor organisations ancillary to the European Union.  But the Memorandum of Understanding protects the UK Government from any financial liability (it’s passed on to the devolved administrations), and the UK already has power to implement EU obligations anyway.  It’s now clear that this clause is much wider than is needed to deal with any harm the UK can suffer.

I’ve written more detailed posts about both these issues on Devolution Matters; that on the Sewel Convention is available here, and that on clause 23 is here.

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.