Brexit and the territorial constitution: déjà vu all over again?

wincottd (1)Brexit has led to conflict between Westminster and the devolved administrations, with the UK Attorney General recently going as far as referring the Welsh and Scottish Continuity bills to the UK Supreme Court. Here Daniel Wincott argues that the Brexit process has highlighted the flaws in the UK’s systems of intergovernmental relations and that action is needed to prevent repeating the mistakes of the past.

The territorial constitution is particularly fragile. Pursuing Brexit, Theresa May’s government has stumbled into deep questions about devolution. The territorial politics of Brexit is a bewildering mix of ignorance, apparent disdain, confrontation, cooperation and collaboration. Rarely have the so-called devolution ‘settlements’ appeared more unsettled.

The UK’s system for intergovernmental relations (IGR) between devolved and UK governments has been hidden in obscurity. Arcane processes – Legislative Consent Memoranda (LCMs – also known as Sewel Motions) and Joint Ministerial Committees (JMCs) – are now more widely discussed.

Brexit has revealed limits and weaknesses in existing devolution structures. UK intergovernmental relations is an unappetising spaghetti of abstruse acronyms, but compared to other multi-level states it is also remarkably informal and limited. Opportunities to develop the system may emerge, but it could also collapse under the pressure of leaving the EU. Continue reading

Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?

 

mcewen

Different political actors have responded to the decision by the Scottish Parliament to withhold its consent for the UK government’s showpiece EU (Withdrawal) Bill in very different ways. Professor Nicola McEwen discusses the options open to both the Scottish and UK governments. 

After much deliberation, the Scottish Parliament voted by 93-30 to withhold consent for the EU (Withdrawal) Bill, the main piece of UK legislation paving the way for Brexit. Labour, the Liberal Democrats and the Greens accepted the SNP government’s charge that the Bill undermines the devolution settlement and the principles on which it was founded. On the same day, the National Assembly for Wales voted by 46-9 to grant consent for the Bill, with the Welsh government arguing that the amended clause 15 (formerly clause 11) and the agreement they reached with the UK government ‘defended and entrenched’ devolution. Only Plaid Cymru disagreed.

Consent was sought from both legislatures following the convention (usually referred to as the Sewel convention) that the UK parliament will not normally legislate in devolved areas, or alter devolved powers, without their agreement. The Withdrawal Bill alters the devolution settlements by placing a new constraint on devolved legislatures and ministers to avoid acting incompatibly with ‘retained EU law’, even in policy fields which otherwise fall within their remit. In its original form, this constraint was placed upon all retained EU law, with provision to release the constraint once it was agreed that there was no need to preserve a common UK legislative or regulatory framework. In its amended form, the Bill requires the UK government to specify in regulations the areas to which the restriction will apply. It introduced a time limit – UK ministers have two years from Brexit day to bring forward new regulations, and these would last for no more than five years. The amendment also places a duty on UK ministers to await a ‘consent decision’ before tabling the regulations, but herein lies the controversy. Whereas the Sewel convention assumes that consent means agreement, Clause 15 empowers UK ministers to proceed even if the ‘consent decision’ is to withhold consent. 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

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’.

Continue reading

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.

Continue reading

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

item163767

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?

Continue reading

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

item163767

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.

Continue reading