Chapter 5: Devolution
Brexit and devolution
71.Devolution has developed in an ad hoc fashion, with different constitutional conversations taking place separately in different parts of the country. We noted in our previous report, The Union and devolution, that the asymmetric devolution settlements involve a complex set of “shared and overlapping competencies.”73 The House of Lords European Union Committee concluded that:
“Against this backdrop the European Union has been, in effect, part of the glue holding the United Kingdom together since 1997. The supremacy of EU law, and the interpretation of that law by the Court of Justice of the EU, have in many areas ensured consistency of legal and regulatory standards across the UK, including in devolved policy areas, such as environment, agriculture and fisheries. In practice, the UK internal market has been upheld by the rules of the EU internal market.”74
72.The UK’s departure from the European Union will therefore have profound consequences for the devolution settlement within the UK. In our forthcoming inquiry we will seek to further consider the constitutional implications of the Bill for the devolution settlements as a whole.
EU law and the devolved institutions
73.In our earlier report we recommended that the Government should make clear in the Bill whether it alone would amend the whole body of EU law in preparation for the UK’s exit from the EU, following which the devolved institutions would have responsibility for those matters within devolved competence, or whether the Bill would confer on ministers in the devolved administrations the ability to prepare amendments within their competence from the outset.75
74.The European Union (Withdrawal) Bill largely takes the former route. While clause 10 and schedule 2 confer powers on the devolved administrations to make regulations which correspond to the powers conferred by clauses 7 to 9 on UK ministers, clause 11 amends the devolution settlements to prevent the devolved institutions from modifying the body of retained EU law. The effect is that the devolved administrations will only have powers (under clauses 7 to 9) if they are subsequently granted by the UK Parliament. The Bill provides “a power to release areas from the limit on modifying retained EU law where it is agreed that a common approach established by EU law does not need to be maintained and changed.”76 This is to be done by an Order in Council, approved by the UK Parliament and the relevant devolved legislature.
75.The Explanatory Notes to the Bill make clear that “the UK Government hopes to rapidly identify, working closely with devolved administrations, areas that do not need a common framework and which could therefore be released from the transitional arrangement by this power.”77 However, in a joint statement, First Minister of Scotland Nicola Sturgeon and First Minister of Wales Carwyn Jones concluded that the Bill “does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK Government and Parliament, and imposes new restrictions on the Scottish Parliament and National Assembly for Wales.”78
76.In our earlier report we stated that “the devolved institutions will need to be appropriately consulted on the amendments to EU law in areas that fall within their jurisdiction.”79 The Government makes clear in the Explanatory Notes that it will “seek legislative consent” for certain provisions in the Bill, however the First Ministers said that “the Scottish and Welsh Governments cannot recommend that legislative consent is given to the Bill as it currently stands.”80 While the legislative consent of the devolved institutions may not be legally required, as the UK Parliament remains sovereign,81 the political and constitutional consequences of proceeding with the Bill without consent would be significant and potentially damaging.82 We will explore the Bill’s devolution implications further in our forthcoming inquiry.
73 Constitution Committee, The Union and devolution (10th Report of Session 2015–16, HL Paper 149), para 277
74 European Union Committee, Brexit: devolution (4th Report of Session 2017–19, HL Paper 9), para 277
75 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 121
77 Ibid.
78 Scottish Government, ‘EU (Withdrawal) Bill’, 13 July 2017: https://news.gov.scot/news/eu-withdrawal-bill [accessed 17 August 2017]
79 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 122
80 Scottish Government, ‘EU (Withdrawal) Bill’, 13 July 2017: https://news.gov.scot/news/eu-withdrawal-bill [accessed 17 August 2017]