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


40.The UK Government’s stated intention and guiding principle in the EUW Bill is to ensure legal continuity through ensuring “the same rules and laws will apply on the day after exit as on the day before”.78 While this is clearly a sensible guiding principle, several concerns have been raised, from the devolved Administrations and others, about the mechanism the Government has chosen to implement this principle in Clause 11 of the EUW Bill.

41.The key technical concern raised about Clause 11 is the potential complexity it could create in the UK statute book, due to a conferred powers model being overlaid onto the reserved matters model of devolution. The overall concerns regarding the devolution aspects of the EUW Bill arise from the constitutionally insensitive nature of the UK Government’s approach in Clause 11. While the intention of Clause 11 may be simply to maintain legal continuity, it has been interpreted by the devolved Administrations as an attempt to reverse some elements of the devolution settlements.

42.Our witnesses noted that there was a clear lack of understanding of the territorial aspects of the UK’s constitution, both in the design of, and debate around Clause 11. However, the main source of disquiet and disagreement between central and devolved Government, derives from the lack of communication and established mechanisms for both proper consultation and shared decision making between governments.

43.The predecessor Committee’s report Future of the Union, part two: Inter-institutional relations in the UK, highlighted the importance of investing in stronger inter-institutional relations. The Committee recommended several achievable first steps in resuscitating these relations, which would have aided these relations in the year following the publication of that report. An effective system of inter-governmental relations is the missing aspect of the current UK constitutional arrangements and the dispute around Clause 11 brings this issue into sharp focus. A set of effective relationships based on mutual trust and effective communication and consultation are essential for the internal governance of the UK, following its departure from the European Union.

29 November 2017