House of Lords Constitution Committee reports on delegated powers

photo_2017_1_cropped (1)tierney2.e1489415384219Last week, the Constitution Committee published its report on the increasing use of delegated powers by the government. Mark Elliott and Stephen Tierney highlight the key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

The House of Lords Constitution Committee last week published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. The first report in this series, concerning the preparation of legislation for parliament, was published in October 2017; reports on the passage of legislation through parliament and post-legislative scrutiny will be published in due course.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin from the unworldly premise that parliamentary delegations of law-making authority are inherently problematic; after all, they are, and will remain, a fact of life. The Committee does, however, adopt as its premise the position that the legitimacy of such delegations is governed by ‘constitutional standards’ whose enforcement amounts to a ‘constitutional obligation’ on parliament’s part.

The Committee goes on to articulate two key principles by reference to which the legitimacy of delegations of power ought to be judged. First, it is ‘essential that primary legislation is used to legislate for policy and other major objectives’, with delegated legislation used only ‘to fill in the details’. Against this background, the Committee laments the ‘upward trend in the seeking of delegated powers in recent years’. Second, and relatedly, the Committee states that it is ‘constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken’ — a phenomenon in which there has been ‘a significant and unwelcome increase’. Having thus nailed its colours to the mast, the Committee goes on to identify a suite of constitutionally dubious trends and practices to which its attention was drawn during the course of the inquiry and which it has itself discerned in recent years through its constitutional scrutiny of all Bills that reach the House of Lords. 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 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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A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

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A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

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House of Lords Constitution Committee reports on ‘English votes for English laws’

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The House of Lords Constitution Committee reported on the first year of the House of Commons’ ‘English votes for English laws’ procedure last week. The committee took the view that it is as yet too early to fully evaluate the impact of EVEL, especially as the current government has a majority of both the whole House of Commons and constituencies in England and Wales. It is therefore recommended that an extended trial should take place for the remainder of this parliament, with a final review by a joint committee early in the next parliament. Mark Elliott and Stephen Tierney offer an overview of the report.

The House of Lords Constitution Committee issued its report on ‘English votes for English laws’ (‘EVEL’) last Wednesday. The report examines the new arrangements for the passage of legislation introduced by the government in July 2015 and agreed by the House of Commons twelve months ago. The committee was asked to review the constitutional implications of these procedures by the then Leader of the House of Commons, Chris Grayling, and to report in the autumn of 2016, its conclusions feeding into the government’s own review of the new system.

In this post we reflect upon the evidence gathered by the committee and the report’s main conclusions. We do so in the context of the committee’s recent reports on devolution, in particular its inquiry into the Union and Devolution, published during the last parliamentary session, where the committee considered issues relating to the governance of England while also criticising the ‘ad hoc, piecemeal’ approach to devolution in the UK.

Reviewing the new ‘EVEL’ arrangements

The particular anomaly which the EVEL system is intended to address is of course the West Lothian question, whereby, in the words of the new report, ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ Various proposals have been put forward in recent years to deal with this issue, most nobably the recommendations of the McKay Commission which were in the end not implemented. It was not until the 2014 Scottish independence referendum that the issue of lopsided parliamentary representation was addressed. Speaking on the day after the referendum Prime Minister Cameron declared: ‘We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.’

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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