50.The existing law prevents the Scottish Parliament, Northern Ireland Assembly and National Assembly for Wales and Scottish Ministers, Welsh Ministers and Northern Ireland Departments from making legislation that is incompatible with EU law.
51.Clause 11 and Schedule 3 amend that law so that none of the devolved institutions can modify retained EU law unless the modification would have been within their legislative competence immediately before exit day. This means that EU withdrawal will not result in any new competencies being conferred on the devolved institutions, even in subject areas that are already devolved (for example, food, plant health, the environment). It will therefore, at least initially, be for the UK Government and Parliament to legislate on matters that fall within those areas but could not be changed by devolved institutions due to their incapacity to legislate incompatibly with EU law. This provision, which the Scottish and Welsh Governments have declared unacceptable, concerns the devolution settlements rather than delegated powers and is therefore outside this Committee’s remit.
52.However clause 11 and Schedule 3 also contain delegated powers that do fall within our remit. These allow for an Order in Council (a type of secondary legislation) to confer on the devolved institutions the power to alter retained EU law. The affirmative procedure would apply in both Houses of Parliament and the relevant devolved legislature.
53.The Government’s delegated powers memorandum describes clause 11 as “a transitional arrangement to provide certainty after exit day and allow intensive discussion and consultation with devolved authorities on where lasting common frameworks are needed”. As regards the power to prescribe exceptions by Order in Council the memorandum asserts that:
(a)its purpose is “to provide an appropriate mechanism to broaden the parameters of devolved competence in respect of retained EU law”;
(b)“it adopts a similar approach to established procedure within the devolution legislation for devolving new powers (for example section 30 orders in the Scotland Act 1998)”;
(c)“without the power it would be necessary for the UK Parliament to pass primary legislation (having sought Legislative Consent Motions from the relevant devolved legislatures) in order to release areas from the new competence limit”.
54.We doubt whether the powers in clause 11 and Schedule 3 are analogous to existing procedures in the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended in 2017). In the case of the Scotland Act, Schedule 5 sets out which matters Parliament considers should be reserved to Westminster (for example, defence, foreign affairs and company law). This is supplemented by a power in section 30 to allow existing reservations, by Order in Council, to be removed from the list or new ones to be added. In contrast, the effect of clause 11 and Schedule 3 is to reserve to Westminster all competences returning from the EU unless the position is changed by Order in Council.
55.Moreover the lists of reserved matters in the devolution enactments are, for the most part, relatively straightforward. This is not the case with the concept of “retained EU law” which is defined in clause 6 to mean:
“anything which, on or after exit day, continues to be, or forms part of, domestic law, by virtue of section 2, 3 or 4 or subsection (3) or (6) [of clause 6] (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)”.
56.This is complex and obscure, and something of a moving target in view of the words in brackets at the end of the definition. There may be significant potential for disputes after exit day between the UK Government and the devolved administrations about what does or does not constitute “retained EU law”, which might ultimately require resolution by the Supreme Court.
57.We are also puzzled by the memorandum’s description of clause 11 as “a transitional provision”. It is not drafted in those terms and could remain indefinitely.
58.The Government appear to envisage that the Order in Council procedure will distribute competences returned from the EU to the devolved institutions, following negotiations with them. The memorandum gives no convincing explanation as to why it is considered appropriate to implement any agreement following those negotiations by delegated legislation, rather than by a Bill. Revisions to the three devolution settlements in light of EU withdrawal will be of considerable constitutional significance. We anticipate that both Houses of Parliament would wish closely to scrutinise proposed legislation amending the settlements, and to have the opportunity to amend it—as has happened with all major changes to devolution since 1998: see most recently the Scotland Act 2016 and the Wales Act 2017.
59.On an issue as important as this, we regard it as unacceptable for Parliament to be presented with a draft Order in Council and given a simple choice of “take it or leave it”. The Government should instead bring forward a separate Bill. It is, of course, not for us to express a view as to which competencies returned from the EU should be devolved to Belfast, Cardiff or Edinburgh. We are concerned only with the issue of whether it appropriate for this to be done by delegated powers. In our view, it is not.
60.The Order in Council powers in clause 11 and Schedule 3 are inappropriate and should be removed. Separate Bills should be introduced in Parliament to provide for the conferral on devolved institutions of competencies repatriated from the EU.
21 Scotland Act 1998, sections 29 and 57; Northern Ireland Act 1998, sections 6 and 24, and the Government of Wales Act 2006, sections 80 and 108A (as amended by the Wales Act 2017).
22 See their Legislative Consent Memoranda: and
23 Para. 68.
24 Para. 69.
25 See also Northern Ireland Act 1998, Schedules 2 and 3 and the Government of Wales Act 2006, Schedule 7A (inserted by the Wales Act 2017).
26 The power in section 30 of the Scotland Act was used in 2013 so as to confer competence on the Scottish Parliament to legislate for the Scottish independence referendum.