Withdrawal Agreement Bill: Implications for devolved institutions

David Torrance

This Insight refers to the previous European Union (Withdrawal Agreement) Bill (October 2019). It does not relate to the bill presented to Parliament on 19 December 2019. Readers should be aware that there are significant differences between the two bills.

The European Union (Withdrawal Agreement) Bill (WAB) amends the European Union (Withdrawal) Act 2018 so that provisions of the Withdrawal Agreement apply directly in domestic law. It therefore also has implications for the Scottish Parliament, National Assembly for Wales and the Northern Ireland Assembly.

This Insight looks at how the WAB:

alters the devolution statutes
gives rise to the need for legislative consent from the Scottish Parliament and National Assembly for Wales
creates a duty on Ministers to report to the devolved institutions on progress on negotiations on the future relationship with the EU
specifies the relationship between the devolved institutions and the new Independent Monitoring Authority which will monitor the UK’s implementation of the citizens’ rights parts of the Written Agreement

Changes to the devolution statutes

The WAB makes technical amendments to the Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 2006 to reflect the fact that the UK will remain aligned with EU law during the transition period (paragraphs 18-20, 22-24, 26-28 and 31 of Schedule 6).

Schedule 1 sets out the powers of the devolved authorities in relation to clauses 12, 13 and 14 of the WAB. This makes clear that powers in respect of social security co-ordination, recognition of professional qualifications and equal treatment cannot be used outside of devolved competence as it presently stands.

The definition of “legislative competence” for the purposes of exercising these powers “disapplies” the normal restriction on the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly, which prevents them from legislating in a way that is incompatible with EU law (or modifying retained EU law). This disapplication is necessary to allow devolved authorities to make all necessary regulations under these powers.

Similarly, provision is made for Scottish and Welsh Ministers and Northern Ireland departments to amend legislation which has been made under their executive competences.

Clause 22, meanwhile, adds a new Schedule to the European Union (Withdrawal) Act 2018, that gives the devolved authorities, or devolved authorities acting jointly with a Minister, a similar power as the UK Parliament to make laws by regulation (Henry VIII powers), in order to enact the Ireland/Northern Ireland Protocol.

Sovereignty of the UK Parliament

Clause 36 of the WAB states that it “is recognised that the Parliament of the United Kingdom is sovereign.” In its Legislative Consent Memorandum, the Scottish Government considers that Clause 36 does not “recognise a widely-accepted principle” but instead:

“represents a contested conception of the constitution, and fails to respect the different constitutional traditions that apply in and between the nations of the United Kingdom”.

Further information on Clause 36 is contained in House of Commons Library Insight Withdrawal Agreement Bill: Sovereignty, special status and the Withdrawal Agreement.

Do WAB provisions require legislative consent?

Under the Sewel Convention the UK Parliament does “not normally” legislate for matters that are within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without the consent of the relevant legislature.

It is also normal practice for the UK Government to seek consent for any provisions that would change the competence of those legislatures or the devolved administrations in Scotland, Wales and Northern Ireland.

The WAB extends and applies to the whole of the UK. Annex A to the Bill’s Explanatory Notes details which provisions are within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly, and would therefore require a Legislative Consent Motion.

The Scottish Government’s Legislative Consent Memorandum agrees that consent is required for certain provisions of the WAB and suggests further clauses. It recommends, however, that the Scottish Parliament “does not give legislative consent” in general.

Democratic consent in Northern Ireland

Clause 22 of the Bill provides the Northern Ireland Executive and Assembly with the power to make legislative changes they consider appropriate to implement the Ireland/Northern Ireland Protocol, although this cannot (as above) be used outside of existing devolved competence.

The Protocol states that its arrangements are to be subject to a democratic consent mechanism in Northern Ireland (see pp 38-42 of Commons Library research briefing on the Withdrawal Agreement), although the mechanism is not included in the WAB. A UK Government Declaration published on 17 October included a commitment to legislate for this before the first consent motion is required towards the end of 2024.

Reporting requirements on the future relationship

Clause 31 of the Bill contains measures which set out the Parliamentary process for overseeing progress towards the future relationship between the UK and the EU.

A Minister must report on progress made in negotiations on this future relationship by the end of each reporting period, and a copy of that report must be provided to the Presiding Officer (or Speaker) of the devolved legislatures, and to the Scottish and Welsh Ministers, and the First Minister and Deputy First Minister or Executive Office in Northern Ireland.

While the devolved legislatures would not have any formal say on the negotiations themselves, there will be broad aspects of the treaty on the future relationship – such as agriculture, fisheries and the environment – where the devolved administrations will have responsibility for implementing international obligations once entered into.

Independent Monitoring Authority

Clause 15 of the Bill creates a new Independent Monitoring Authority (IMA) to monitor the UK’s implementation of the citizens’ rights parts of the Written Agreement. Details of the formal relationship between the IMA and the devolved legislatures and authorities are set out in Schedule 2.

The Secretary of State, for example, must ensure that membership of the IMA includes non-executive members with knowledge of conditions in Scotland, Wales and Northern Ireland. Paragraph 18 ensures IMA members are disqualified from membership of the Northern Ireland Assembly. Similar provisions will be made for the Scottish Parliament and National Assembly for Wales via secondary legislation under the Scotland Act 1998 and Government of Wales Act 2006.

Paragraph 24 gives the IMA the power to carry out an inquiry in response to a request from Scottish and Welsh Ministers and the Executive Office in Northern Ireland, when the request relates to a public authority that is devolved to their respective nations. IMA reports (annual or otherwise) must be sent to Scottish and Welsh Ministers and the Executive Office in Northern Ireland.

Finally, sub-paragraph (11), meanwhile, directs Scottish Ministers, Welsh Ministers and the Executive Office in Northern Ireland to lay the IMA’s annual report before the appropriate devolved legislature as soon as possible after receiving it.

In its Legislative Consent Memorandum, the Scottish Government considers that changes to the design of the IMA “would ensure that is has authority, accountability and legitimacy when operating in devolved areas.”