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 parliaments only limited powers. Certain areas, such as foreign affairs and defence, are specifically restricted to Whitehall and Westminster, and devolved authorities may not act within these fields. But whatever is not specifically reserved is, in devolution speak, a “competence” for devolved authorities, and it is these areas (such as agriculture and fisheries) that Scotland and Wales complain are being commandeered by the UK government through the EUWB.
Last Autumn, amendments were proposed to Clause 11 by the Welsh and Scottish governments and others. None succeeded. The UK government acknowledged that Clause 11 needed amendments but failed to produce them, in spite of assurances it would do so.
The Scottish and Welsh governments therefore published “Continuity Bills,” to preserve devolved competences from appropriation by Westminster in direct challenge to the EUWB, thereby moving the UK a step closer to a major constitutional clash. Unless changes are made to the EUWB, devolved consent will be withheld and devolved Continuity Bills may be adopted.
These Continuity Bills share a structure and approach with the EUWB. They are intended to complement the treatment of reserved law (ie law that applies to the whole UK), which must be dealt with by the EUWB. However, significantly, the Scottish government has chosen to diverge from the EUWB in some areas.
For example, unlike the EUWB, the Scottish Continuity Bill does not exclude the application of the Charter of Fundamental Rights post-Brexit. The Scottish Continuity Bill also provides that further changes by UK Ministers to retained EU law within devolved areas may only be made with the consent of Scottish ministers.
However, to complicate matters further, the presiding officer of the Scottish parliament (who has a similar role to Commons Speaker), Ken Macintosh, has stated that the Scottish parliament lacks the power to enact the Bill. His reasoning rested not on any perceived conflict between the Bill and powers reserved to Westminster, but rather on the fact that he thought the Bill violated Scotland’s current obligation to legislate compatibly with EU law. Macintosh stated that Holyrood could not legislate in this area until EU treaties no longer applied in Scotland, writing, “Legislation cannot seek to exercise competence prior to that competence being transferred.”
“The UK government needs to work with devolved governments, not ignore them”
By contrast, his counterpart in the Welsh Assembly, Elin Jones, found the (very similar) Welsh Continuity Bill compatible with devolution. The Scottish government does not accept Macintosh’s opinion, and the Lord Advocate, Scotland’s chief law officer, opined that if the Scottish Bill was breaking EU law in legislating for powers the parliament would obtain after Brexit, so too was the UK Government’s EUWB. Notwithstanding the Presiding Officer’s Opinion, Scottish parliamentary procedure provides the Bill can still be introduced.
So, withdrawing from the EU is producing these constitutional conundrums within the UK. How to proceed?
First, surely the UK government must make some concessions, and amend Clause 11. The UK government argument is that it needs some control over currently devolved matters in order to be able to set up frameworks that will ensure a functioning UK market in areas such as agriculture and trade, without too much regulatory divergence. But for this to succeed, the UK government needs to work with devolved governments, not ignore them, as it too often has seemed to recently.
The best way forward would be for future frameworks to be jointly agreed (by law) between the UK and devolved governments. In the absence of such concessions, devolved authorities are unlikely to give legislative consent to the EUWB (although this refusal may be restricted to those clauses in the EUWB, such as Clause 11, that touch on devolution) but instead press on and adopt their competing Continuity Bills. (They may also garner some support in the House of Lords—where the EUWB is now being debated—which may reject aspects of the Bill as unconstitutional in its violation of the devolution settlement.)
On the other hand, adopting Continuity Bills will not be plain sailing. Aside from Macintosh’s negative Opinion, timing is tight. Any Continuity Bill must be enacted before the EUWB is itself adopted, otherwise the EUWB could pre-empt it and alter the devolution settlement. Therefore, Continuity Bills must be expedited. However, such speed may undermine the requirement of effective legislative scrutiny—a criticism frequently made of the EUWB itself (which has not been treated as emergency legislation).
Furthermore, the UK government is likely to challenge Continuity Bills in court. The Supreme Court has a devolution jurisdiction which enables it to hear such a challenge very swiftly.
It should be noted that, ultimately, and somewhat drastically, even if Continuity Bills were enacted and upheld in Court, the UK government has the option of enacting the whole EUWB for the entire UK, even in the absence of devolved consent, because Westminster, as a sovereign parliament, may override legislation passed by devolved legislatures. The UK is not a federal state but a Union state employing devolution, and devolved authorities lack the protections for their competences that federalism would offer. Such is the price of maintaining the sovereignty of the Westminster parliament.
Of course, this would not be a happy situation. The UK parliament would be overriding competing Continuity Bills, and enacting the EUWB in the absence of legislative consent from Scotland and Wales, ignoring the Sewel convention, and therefore acting unconstitutionally.
Therein lies perhaps the real utility of a Continuity Bill: in pushing the UK government into a situation where it must either permit devolved nations to take control of retained EU law in devolved areas, or explicitly override a Continuity Bill and/or the devolution settlements without their consent, perhaps provoking a constitutional crisis.