The Programme Motion for the EU (Withdrawal) Bill (EUW Bill) has been published for the Commons to consider Lords’ amendments made by the Lords at Report and Third Reading. Among those amendments was the UK Government’s new proposal for how retained EU law should interact with the devolution settlements. If the Commons agrees to these amendments, there is no further opportunity for these proposals to be revisited before the EUW Bill gains Royal Assent. This post looks at the outstanding areas of disagreement about the devolution provisions in the Bill, and explains what proposed opposition amendments to clause 15 would entail.

The devolution dispute in brief

Original “clause 11” of the EUW Bill provided that devolved institutions could not modify any retained EU law in devolved areas unless the UK Government subsequently agreed to ‘release’ parts of it (at an undefined point in the future) by Order in Council. The Scottish and Welsh Governments opposed this, arguing restrictions should be:

(a) drawn much more narrowly,

(b) clearly guaranteed to be temporary, and

(c) introduced only with the consent of the devolved legislatures.

They entered into protracted negotiations with the UK Government between September 2017 and late April 2018 to try to agree a scheme to replace the one in the Bill.

The Welsh Government agreed to a new scheme in April 2018. Under what was to become new clause 15, UK Ministers would have to specify in regulations the parts of retained EU law they wanted to protect from modification by devolved legislatures. Moreover, there would be time limits: no regulations could be made to restrict competence more than two years after exit day and no regulations could be in force for more than five years. There was also an ’Intergovernmental Agreement’ in which the UK Government promised it would not ‘normally’ make regulations to restrict competence without first securing the consent of the devolved legislature. Although this was not a legal guarantee, if a UK minister sought to make regulations without the affirmative consent of Holyrood or the Senedd, he or she would have to make a statement to the House explaining why, and make available any statement against the regulations issued by the relevant devolved government.

The Scottish Government refused to accept this compromise because it would still allow clause 15 regulations to restrict the Scottish Parliament’s competence without its consent. It believes the appropriate precedent for secondary legislation changing competence is the “section 30 Order” process, under which devolved consent is a legal requirement.

Two sets of amendments

In a late attempt to secure agreement, two sets of amendments in lieu have been tabled in relation to clause 15. The first set come from SNP and Plaid MPs and broadly reflect the stated position of the Scottish Government. The second set come from the Official Opposition, and represent a new proposal that seeks to compromise between the two Governments’ current positions.

SNP/Plaid amendments

The SNP/Plaid amendments would implement what the Scottish Government called ‘option 1’ in its response to the UK Government’s offer in April. These amendments would remove the power to make regulations to protect retained EU law from the Bill completely. In practice, this means that any restrictions would have to be imposed using either the procedures in s. 30 Scotland Act 1998 and s. 109 Government of Wales Act 2006 (both of which require the devolved legislature’s consent) or by way of fresh primary legislation.

Labour amendments

The Labour amendments would do two things. Firstly, they would reduce the shelf-life of clause 15 regulations to three years instead of five. Powers not replaced by common frameworks would be ‘released’ by default by March 2024 instead of March 2026.

Secondly, the Labour amendments would place a new restriction on UK Ministers. Under this new proposal, they would only be allowed to make regulations without consent if they reasonably believe ‘regulations are required for the purpose of giving effect to any international obligations’.

This language is similar to an existing power in the devolution statutes, which has to date never been used. Under s. 35 Scotland Act and s. 114 Government of Wales Act, the Secretary of State can block devolved legislation where he or she has ‘reasonable grounds to believe’ it would ’be incompatible with any international obligation or the interests of defence or national security’.

How high a bar this amendment’s test would impose in practice is an open question. It would make it harder for the UK Government to impose restrictions for purely domestic reasons (e.g. in relation to the UK’s internal market). A Minister would need to demonstrate an international obligation requires, rather than just would be more expediently given effect to if, a clause 15 restriction to be imposed.

Will these amendments be considered?

It is possible that either or both sets of amendments will not be voted on this week. Six hours have been allocated for debate on Tuesday, and the Lords devolution amendments are only slated for debate in the final three hours (less any time taken to vote on the previous set of amendments). To pass either set of opposition devolution amendments, they would have to be moved ‘before the knife falls’ (an internal deadline, set by the programme order, for decisions on a group of amendments) in Commons debate, after which only Government motions may be moved.

If the Lords amendments were outright disagreed to this would revive the original clause at first instance, and what should replace it would be a matter for Ping Pong – when a bill goes back and forth between each House until both Houses reach agreement on the exact wording.

If the Lords amendments were accepted, any further amendments on devolution to the Bill would be impermissible: current clause 15 (originally clause 11) will have been agreed by both Houses. This is therefore potentially the last opportunity for further compromise on devolution before the EUW Bill gets Royal Assent.

Graeme Cowie is a specialist in devolution in the House of Commons Library. For more impartial analysis of the EU (Withdrawal Bill) visit parliament.uk/brexit

Picture credit: UK Parliament –  Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)