Legislative consent and Brexit: devolved governments’ objections to the EUW Bill

There are already two UK Bills related to the UK’s withdrawal from the EU that engage the legislative consent convention. The European Union (Withdrawal) Bill (EUW Bill) and the Trade Bill both modify the competence and functions of devolved institutions and legislate in devolved areas. The future European Union (Withdrawal Agreement and Implementation) Bill is also expected to include provisions that engage the legislative consent convention.

The Scottish and Welsh Governments recommended that their legislatures withhold consent to the EUW and Trade Bills in their current form. This Insight explains why they recommended this and what has happened since to try to reach agreement on those Bills.

Devolved governments’ objections to the EUW Bill

The Scottish and Welsh Governments’ memorandums object to the EUW Bill for broadly four reasons:

(a) it imposes a new restriction on devolved competence “not to modify” retained EU law;

(b) it allows UK Ministers to modify the devolution statutes using delegated powers without devolved consent;

(c) it allows UK Ministers to change the law in devolved areas using delegated powers without devolved consent; and

(d) it requires certain delegated powers of devolved Ministers only to be used with the consent of UK Ministers.

They are concerned that these factors, collectively, would allow the UK Government to impose new UK-wide “common frameworks” (affecting devolved responsibilities) without their consent. This explains why the devolved governments describe the EUW Bill as a “power grab”.

UK Government’s perspective

The UK Government disagrees with this assessment. It says most of these repatriated EU powers will in fact transfer to the devolved authorities, giving them new powers they previously didn’t have.

It also says some of the laws being converted from “EU law” to “retained EU law” should be protected from devolved modification, at least temporarily. UK-wide frameworks are necessary in some areas, it says, to protect strategic shared interests like the internal market.

The UK Government denies the Bills represent a “power grab” because the restrictions imposed by the devolution statutes by virtue of EU law currently prevent the devolved legislatures from making legislation in those ways.

The Trade Bill

The Trade Bill is opposed by devolved authorities for very similar devolution-related reasons. The Bill includes delegated powers that allow UK Ministers to legislate in devolved areas. The devolved authorities believe this could undermine their existing role in implementing trade agreements where they cut across devolved policy areas.

The UK Government is concerned that if devolved consent is required before it can use certain powers in relation to trade agreements, this will make it more difficult to agree and implement those agreements. It fears this would effectively give devolved authorities a “veto” over a reserved matter: foreign affairs and treaty negotiations.

Progress towards an agreement?

The Governments have been using the Joint Ministerial Committee for European Negotiations (JMC (EN)) to try to resolve these differences. The JMC (EN) was set-up following the EU referendum. It is a forum in which representatives from the four governments of the UK can discuss issues connected with the UK’s withdrawal from the European Union.

Back in October 2017, JMC (EN) agreed a set of principles that should govern where common frameworks are required and towards what objectives they should be directed. The group last met in March 2018.

The Governments have yet to agree the areas are where common frameworks are necessary. On 9 March, the UK Government published a working document indicating its view. The “Framework Analysis” divides returning EU powers into four categories:

(a) policy areas where powers can be released to devolved authorities outright;

(b) policy areas where “non-legislative common frameworks” may be required;

(c) policy areas where “legislative common frameworks” may be required;

(d) policy areas it believes are reserved but which are subject to ongoing discussion with devolved authorities.

This list has not yet been agreed to by the devolved authorities and there is some dispute over whether certain powers are or are not devolved.

Amendments to the EUW Bill?

Agreement has not yet been reached about how the EUW Bill’s devolution provisions should be changed. The UK Government, at Lords Committee Stage, moved for debate but then withdrew a set of changes to clause 11. The Government promised to return to this issue on Report.

The original Bill would protect retained EU law by default. The Government proposal would have “reversed” that presumption: UK Ministers would have to specify the areas they wished to prevent devolved legislatures from changing. They would also have to report quarterly to Parliament on progress made to replace restrictions with a common framework.

The Scottish and Welsh Governments believed these changes were insufficient for two reasons. Firstly, they didn’t legally guarantee common frameworks would be created only with devolved consent. Secondly, the UK Government could hold onto retained powers indefinitely if agreement to replace them with common frameworks wasn’t reached.

The devolved Governments have fast-tracked “Continuity Bills” to try to pre-empt the EUW Bill in case the UK Government tries to pass it without legislative consent. These proposed statutes could be challenged in the courts by the UK Government.

For further information on devolved challenges and Brexit, see the Commons Library Briefing Papers Brexit: Devolution and legislative consent and Legislative consent and the European Union (Withdrawal Bill).