The Scottish and Welsh governments are refusing to give their consent to the EU withdrawal bill, setting the stage for a dramatic constitutional clashby Sionaidh Douglas-Scott / March 6, 2018 / Leave a comment
In her Mansion House speech last week, the prime minister stated that she “would not allow anything that would damage the integrity of our precious Union.” Yet the UK is divided over Brexit—and indeed the process of departure risks destabilising the devolution settlements in Scotland (which voted 62 per cent “Remain”) and Wales.
This risk was underlined last week when, dissatisfied with the approach taken in the UK government’s EU Withdrawal Bill (EUWB), the Scottish and Welsh governments issued their own Bills which appear to directly challenge the EUWB. How did this come about, and does this raise the possibility of a constitutional crisis?
The problem arises because the Scottish and Welsh governments, and their relevant parliamentary committees, claim that the EUWB, currently making its way through Westminster, is incompatible with the devolution settlement and thus will refuse to give legislative consent to it.
A UK constitutional convention—the “Sewel Convention”—applies wherever Westminster legislation touches on devolved powers, normally requiring the consent of the devolved authorities before that UK legislation can be adopted. Thus, without the legislative consent of Wales and Scotland the future of the EUWB looks shaky.
The EUWB is a Bill for the whole UK, designed to convert EU law to UK law (it will then be called “retained EU law”) so there will be no glaring gaps in UK law on Brexit day. It also sets out a process whereby UK government ministers may repeal or amend “retained EU law,” to make it fit for domestic use.
The UK’s devolved governments do accept that responsible preparations should be made for withdrawal, including preserving a functioning legal system. However, it is the obscure Clause 11 of the EUWB, dealing with devolution aspects of withdrawal, which has upset devolved nations and prompted their Continuity Bills. Clause 11 prevents devolved authorities from modifying “retained EU law.”
This means post-Brexit, all powers (even in areas devolved to Scotland and Wales) currently exercised in Brussels will transfer to Westminster, depriving devolved institutions of powers that would have returned to them by default on withdrawal. In a joint statement, First Ministers Nicola Sturgeon and Carwyn Jones described the Bill as “a naked power grab, an attack on the founding principles of devolution…”
“The ‘Sewel Convention’ applies wherever Westminster legislation touches on devolved powers”
Now the Devolution settlement allows devolved…