Devolution and Exiting the EU and Clause 11 of the European Union (Withdrawal) Bill: Issues for Consideration Contents

1The Devolution Clause

3.The European Union (Withdrawal) Bill (EUW Bill) received its Second Reading on 7 and 11 September 2017, and is now being considered in Committee of the Whole House. Our report is particularly relevant to days 4 and 5 of the Committee stage. Day 4, on Monday 4 December, will include consideration of Clause 11 and Schedule 3. This includes the creation of UK wide frameworks, the Joint Ministerial Committee, and the powers of the devolved assemblies in relation to “retained EU law”. Day 5, on Wednesday 6 December, will be in two parts: the first to consider Clause 10 and Schedule 2 which grant the Government the power to make changes through delegated legislation in connection with devolved powers; the second to consider Clause 12 and Schedule 4 concerning financial provision in connection with these powers.

4.The UK Government’s stated intention in introducing the EUW Bill is to “provide a functioning statute book on the day the UK leaves the EU. As a rule, the same rules and laws will apply on the day after exit as on the day before”.3 In order to do this, the Government has stated that the EUW Bill should perform four main functions:

a)To repeal the European Communities Act 1972 (ECA 1972) (Clause 1)

b)To retain EU law in the UK statute book that might otherwise have been removed by the repeal of the ECA 1972. It does this through preserving domestic primary and secondary legislation that gives effect to EU law (Clause 2), through converting EU law that applies in the UK into domestic law and saving rights based on EU law (Clause 3 and 4). This converted and preserved EU law the forms a new body of UK law created by the Bill called “retained EU law”.

c)The third function is performed by the Clauses that provide instructions for the courts (Clause 5 and 6) and creates powers for Ministers to deal with deficiencies in this new body of retained EU law that arise as a consequence of leaving the EU (Clauses 7, 8 and 9).

d)To maintain the “current scope of devolved decision-making powers in areas currently governed by EU law”.4 The EUW Bill aims to achieve this through converting EU law into a new retained EU law and creating a requirement for the devolved legislatures in Scotland, Wales and Northern Ireland to legislate in a way compatible with retained EU law.

5.The main provisions in the EUW Bill dealing with devolution are Clauses 10 and 11, and Schedules 2 and 3. Clause 10 has the sole function of giving effect to Schedule 2, which provides for corresponding and concurrent powers for devolved authorities to those given to UK Ministers in Clauses 7, 8 and 9, to correct deficiencies in domestic devolved legislation that arise from withdrawal from the EU.5

6.Clause 11 makes changes to the Scotland Act 1998 (section 29), Government of Wales Act 2006 (Section 108A) and Northern Ireland Act 1998 (Section 6). These changes remove the restriction preventing devolved institutions from legislating in a way incompatible with EU law. This currently ensures the devolution Acts are in line with the Court of Justice of the European Union (CJEU) judgments that assert primacy of EU law over national law.6 Clause 11 substitutes this restriction for a new restriction on devolved institutions that they cannot modify retained EU Law.

7.Schedule 3 makes corresponding changes to the Scotland Act 1998 (section 57), Government of Wales Act 2006 (Section 80) and Northern Ireland Act 1998 (Section 24), which replace the restriction on devolved authorities not to make subordinate legislation or act incompatibly with “EU Law” with a new restriction not to modify retained EU law.

8.The Acts of Parliament which established devolution in the UK were passed in the context of the UK’s membership of the EU. Consequently, many of the areas of devolved competence are governed by EU Law, regulations and common frameworks. Professor Alan Page, Professor of Public Law at the University of Dundee, explained that the restrictions in the original Acts ensure devolved administrations do not place the UK in breach of its obligations as an EU Member State.7 The Government’s intention in Clause 11 is to “maintain the current parameters of devolved competence as regards retained EU law” in line with the Government’s overall intention of ensuring legal continuity by having “the same rules and laws will apply on the day after exit as on the day before”.8 To ensure this legal continuity, the Bill prohibits devolved legislatures from modifying retained EU law within current devolved areas of competence, in a way which would not have been compatible with EU law immediately before exit day.9

9.In the explanatory notes to the Bill, the UK Government explains that devolution provisions in the Bill are intended as transitional arrangements, with decisions to be taken on long term common policy approaches later.10 Clause 11 includes a provision to “release areas from the limit on modifying retained EU law” through an Order in Council. This enables powers to be returned to devolved institutions in areas where it is decided that the common approach existing under EU law does not need to be maintained.11 For example, carbon capture and storage is currently regulated under a common framework, but could be released for devolved areas to develop their own policy. Orders in Council can also be used to release areas where new or modified common frameworks will be established, so, for example, could be used to set up or change a UK wide agriculture policy. Orders in Council, for this purpose, require approval in devolved legislatures and both Houses of Parliament.12 If changes to common frameworks were to be made by statute, this would trigger the Sewel Convention and consent would be sought by UK Government from the devolved legislatures.13

10. While there is a clear consensus amongst our witnesses that the effect of Clause 11 is to provide legal continuity, the means by which Clause 11 will achieve this has been the focus of some concern and controversy.14 These issues are crucial, as Clause 11 not only provides the statutory framework within which devolution will operate in the UK following its departure from the EU, but the debate around Clause 11 raises fundamental principles about how the relationships between central and devolved government in the UK will be conducted.

5 European Union (Withdrawal) Bill, Briefing Paper 8079, House of Commons Library, 1 September 2017, p 104

6 Court of Justice of the European Union, Flamino Costa v E.N.E.L, 15 July 1964; Factortame Ltd, R (On the Application Of) v Secretary of State for Transport [1990] UKHL 13; European Union (Withdrawal) Bill, Briefing Paper 8079, House of Commons Library, 1 September 2017, p 53–5

7 Professor Alan Page (DEU0008) para 7; Q13

11 European Union (Withdrawal) Bill [Bill5 (2017–19)],Clause 11(1)b,11(2)b, 11(3); Explanatory Notes to the European Union (Withdrawal) Bill [Bill5 (2017–19)], para 36

12 European Union (Withdrawal) Bill, Briefing Paper 8079, House of Commons Library, 1 September 2017, p 104

13 The Sewel Convention applies when the UK Parliament legislates on a matter which is devolved. It holds that this will happen only if the devolved legislature has given its consent. While it was originally not included in the legislation, it is now included in the Scotland Act 2016 and the Wales Act 2017. It is also stated in the Memorandum of Understanding between the UK Government and devolved executives, first drawn up in 1999. The thinking behind the Convention is that the UK Parliament, as a sovereign body, retains full legal power to legislate on devolved matters, yet the spirit of devolution implies that political power rests with the Scottish Parliament. In order to avoid conflict, the Government undertook not to seek nor support relevant legislation in the UK Parliament without the prior consent of the Scottish Parliament. This consent is embodied in a “Sewel motion,” or, formally, a “Legislative Consent Motion”. The Sewel Convention, Standard Note SN/PC/2084, House of Commons Library

14 Professor Alan page (DEU0008); Q13; Dr Tobias Lock (0001) para 5; Rawlings, Richard, Brexit and the Territorial Constitution, 2017, p 5

29 November 2017