Chapter 5: Devolution
Introduction
66.The Bill affects devolution arrangements in several ways, with distinct implications for Northern Ireland.
67.The Bill makes technical changes to the devolution statutes.54 Clause 22, which inserts a new Part 1C to the schedule 2 to the 2018 Act, extends further regulation-making powers to the devolved authorities. There are also modifications of devolved competence to give effect to clauses 12, 13 and 14.
Legislative consent
68.Under the Sewel convention the UK Parliament does not “normally” legislate for matters within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without consent. It is also standard practice for the UK Government to seek consent of the relevant legislature where there are alterations to devolved competence.
69.The territorial extent and application of the Bill in the United Kingdom is set out in Annex A to the explanatory notes. The UK Government has sought the legislative consent of the Scottish Parliament55 and the National Assembly for Wales for the Bill.56 On 21 October 2019 the Scottish and Welsh First Ministers wrote to the Prime Minister and the European Council President urging them to agree more time for scrutiny of the Bill.57 Legislative consent had not been given at the point that this report was published. The Scottish Government had recommended that consent be refused.58
Future relationship negotiations
70.Clause 31 provides for parliamentary oversight of negotiations towards the future relationship between the UK and the EU. There is no reference to a role for the devolved administrations, though any future relationship will inevitably affect important areas of devolved competence.
71.A minister must report on progress made in negotiations on any future relationship by the end of each reporting period, and provide a copy of that report to the Presiding Officer of each of the devolved legislatures, and to the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister or Executive Office in Northern Ireland.59
72.In our report Parliamentary Scrutiny of Treaties we said:
“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence.
The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations.”60
This conclusion remains pertinent and applies to the relevant provisions of the Bill.
Northern Ireland
73.The Withdrawal Agreement contains a Protocol on Ireland/Northern Ireland, which is a matter of political controversy. The Government states that the Protocol “provides arrangements that seek to ensure that the UK (including Northern Ireland) does not remain in a customs union with the European Union.”61 The Protocol states: “Northern Ireland is part of the customs territory of the United Kingdom”.62 However, Article 5 of the Protocol creates bespoke customs, VAT and related arrangements for Northern Ireland.63 These are put in place for a potentially open-ended period and are to be regulated by the Joint Committee established by the Agreement (comprising representatives of the UK and the EU and which will govern the implementation and application of the Agreement) and a “Specialised Committee”64 (comprising representatives of the European Union and representatives of the United Kingdom, responsible for issues related to the implementation of the Agreement).65 The United Kingdom is obliged to give legal effect to these arrangements.66
74.Perhaps the most controversial area in this Protocol is Article 18, which concerns “democratic consent within Northern Ireland”. Although the Protocol references the principle of consent in the Belfast/Good Friday Agreement, the future of these customs arrangements, after the initial period provided for in the Protocol (four years after the end of the implementation period), may be subject to a four-year continuation “on the basis of a majority of Members of the Northern Ireland Assembly, present and voting.”67
75.The principle of consent is enshrined in the Belfast/Good Friday Agreement, wherein the signatories:
“recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.”68
76.The Protocol recognises this principle:
“This Protocol is without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people.”69
77.This principle is also reflected in the design of “power sharing” in the devolved institutions’ decision-making mechanisms. This is evident at executive level, which includes the joint office of First Minister and Deputy First Minister, each holding equal powers, and a multi-party executive. At legislative level, Northern Ireland Assembly decisions require cross-community support on certain designated issues or if 30 members of the Assembly request such a level of assent (through a petition of concern). In such cases decisions are based on cross-community majority support including a majority of designated nationalists and designated unionists or a weighted majority (60%) of Members of the Legislative Assembly present and voting, including at least 40% of each of the nationalist and unionist designations present and voting.70 The arrangement in the Withdrawal Agreement that allows for simple majority decision-making in the Assembly precludes the exercise of a petition of concern on the issue of customs and related arrangements.
78.The Government has published a Unilateral Statement on Consent to supplement the Withdrawal Agreement in which it lays out additional steps it will take to try to achieve broad consent on the issue of the customs arrangements. This also reiterates that consent can be given by a majority of the members of the Assembly, present and voting.71
Part 4, clauses 21–24
79.Clauses 21–24 of the Bill make provision for powers in relation to this Protocol. Clause 21 inserts a new section 8C into the 2018 Act which contains broad delegated powers. New section 8C(1) gives ministers, by way of regulations, power to implement the Protocol and to supplement its provisions. The delegated powers in new section 8C(1) are subject to the “appropriateness” test equivalent to section 8(1) of the 2018 Act.
80.These powers are also designed to facilitate the new customs arrangements that will apply in relation to Northern Ireland goods.72 They give ministers powers to define “qualifying Northern Ireland goods” for the purpose of the Bill.73 New section 8C(7) applies these regulation-making powers to the Protocol as a whole or to “any provision of EU law which is applied by, or referred to in, the Protocol”.74
81.In general, the delegated powers in new section 8C align with those in section 8 of the 2018 Act and are largely subject to comparable levels of scrutiny to the equivalent powers in the 2018 Act. Where the power in new section 8C(1) is used to amend, repeal or revoke primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply. Otherwise negative resolution procedure applies.
82.There is one significant difference between powers under new section 8C and those under 8B(5) that were discussed in chapter 4. There is no restriction on 8C powers being used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence (i.e. with a penalty exceeding two years imprisonment), establish a public authority, amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.
83.New section 8C(2), which supplements new section 8C(1), contains much broader powers. Under this provision, regulations “may make any provision that could be made by an Act of Parliament (including modifying this Act).” This is an extensive Henry VIII power. Potentially it allows for significant changes to the domestic legal regime applying to the Protocol. As mentioned above, it is not subject to restrictions equivalent to new section 8B(5) inserted by clause 18. In our report on the European Union (Withdrawal) Bill, we concluded in relation to an equivalent power in clause 9 of that Bill:
“It would require the strongest of justifications for ministers to be given a broad power by regulations to alter as they think “appropriate” any existing law, including the Act providing the power, on the basis of the terms of the Withdrawal Agreement.”75
84.The powers in clause 21 for ministers to amend or repeal this Bill once enacted are broad and require further detailed scrutiny. As with the other powers in this Bill, we await the assessment of the Delegated Powers and Regulatory Reform Committee.
85.Clause 22 gives powers to devolved authorities, including in Scotland and Wales, to implement the Ireland/Northern Ireland Protocol. It does so by inserting a new Part 1C of schedule 2 to the 2018 Act. As in the 2018 Act itself, the wide powers for ministers are mirrored at devolved level.
86.In new Part 1C, new paragraph 11N(1) provides that no provision may be made by a devolved authority acting alone in regulations under this Part unless the provision is within the devolved competence of the devolved authority. Otherwise there is a joint decision mechanism: new paragraph 11M(2) provides that regulations under the schedule may only be made jointly by a UK minister and a devolved authority.
87.If the devolved institutions in Northern Ireland remain in abeyance, these joint decision powers cannot be exercised. This will lead the UK Government to make unilateral decisions under new section 8C(1) as it considers appropriate, even if this concerns devolved matters.
88.Clause 23 gives effect to schedule 3, which seeks to embody the “no diminution” commitment under Article 2(1) of the Protocol:
“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.”
89.Clause 24 provides safeguards in relation to another important dimension of the Belfast/Good Friday Agreement: North–South co-operation. The UK Government may not agree to any recommendation by the Joint Committee under Article 11(2) of the Protocol that would alter the arrangements of North–South co-operation in the Belfast/Good Friday Agreement, establish a new implementation body or alter the functions of an existing implementation body. Clause 24 appears to provide stronger protection of the North–South dimension of the Belfast/Good Friday Agreement than is provided by the Protocol to the principle of consent in the Northern Ireland Assembly.
90.The Ireland/Northern Ireland Protocol is of the highest importance. It is skeletal in places. We look forward to the assessment by the Delegated Powers and Regulatory Reform Committee of the appropriateness of the delegated powers in the Bill to implement it. We note that many of the provisions relating to Northern Ireland are not temporary, as they will last beyond the end of the implementation period. These are issues that require further careful consideration.
54 Ibid., schedule 6
55 Memorandum from the Scottish Government, 22 October 2019, https://www.parliament.scot/parliamentarybusiness/Bills/113267.aspx [accessed 30 October 2019]
56 Legislative Consent Memorandum for the Withdrawal Agreement Bill, 23 October 2019, http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=26719 [accessed 30 October 2019]
57 Scottish Government, Withdrawal Agreement Bill, 21 October 2019, https://www.gov.scot/news/withdrawal-agreement-bill/ [accessed 30 October 2019]
58 Legislative Consent Memorandum for the Withdrawal Agreement Bill, 23 October 2019,
https://www.parliament.scot/S5_Environment/Meeting%20Papers/SPLCM-S05-28.pdf [accessed 30 October 2019]
59 European Union (Withdrawal Agreement) Bill, clause 31, inserted section 13C(6)(b)
60 Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345), paras 140–141
62 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Ireland/Northern Ireland Protocol, Article 4
63 All in the context of protecting the UK internal market: “Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.” HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Article 6(1)
64 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019,
Article 165(1)(c)
65 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Ireland/Northern Ireland Protocol, Article 14, supplemented by a “joint consultative working group” composed of representatives of the European Union and the United Kingdom (Article 15).
66 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Ireland/Northern Ireland Protocol, Article 12
67 Ibid., Article 18(5)
68 Belfast/Good Friday Agreement, 10 April 1998, Article 1(ii): https://www.gov.uk/government/publications/the-belfast-agreement [accessed 30 October 2019]
69 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019, Ireland/Northern Ireland Protocol, Article 1(1)
70 Northern Ireland Act 1998, section 42. This mechanism was intended to be a “safeguard to ensure that all sections of the community can participate and work together”. Belfast/Good Friday Agreement, para 5.
71 HM Government Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland, paras 3 and 6: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840232/Unilateral_Declaration_on_Consent.pdf [accessed 30 October 2019]
72 European Union (Withdrawal Agreement) Bill, clause 21, inserted section 8C(3)–(4)
73 Ibid., clause 21, inserted section 8C(6)
74 Ibid., clause 21, inserted section 8C(7)(b)
75 Constitution Committee, European Union (Withdrawal) Bill, (9th Report, Session 2017–19, HL Paper 69), para 196