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European Union (Withdrawal Agreement) Bill Contents

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Chapter 5: Devolution

Introduction

74.The Bill affects devolution arrangements in several ways, with distinct implications for Northern Ireland.

75.The Bill makes technical changes to the devolution statutes.61 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

76.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.

77.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 sought the legislative consent of the Scottish Parliament and the National Assembly for Wales for the previous iteration of the Bill62 and has done so again for this Bill.63 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 previous version of the Bill.64 The Scottish Government had earlier decided in principle to withhold consent from all bills to deliver Brexit65 and subsequently recommended against consent for the current Bill,66 a position agreed by the Scottish Parliament after debate.67 The Welsh Government has recommended against consent to the Bill in its current form,68 though the Welsh Assembly has yet to make its decision on consent.

Northern Ireland

78.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.”69 The Protocol states: “Northern Ireland is part of the customs territory of the United Kingdom”.70 However, Article 5 of the Protocol creates bespoke customs, VAT and related arrangements for Northern Ireland.71 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”72 (comprising representatives of the European Union and of the United Kingdom, responsible for issues related to the implementation of the Agreement).73 The United Kingdom is obliged to give legal effect to these arrangements.74

79.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.”75

80.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.”76

81.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.”77

82.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.78 There have been concerns expressed about the way that the petitions of concern had been used in the Northern Ireland Assembly. The Northern Ireland Affairs Committee said:

“We were consistently told that the petition of concern mechanism had been abused in the past. Instead of addressing a power imbalance, this veto mechanism has seemingly strengthened the imbalance. In doing so, it has stifled legislative progress. Reform to the petition of concern mechanism is long overdue.”79

The recent agreement for re-establishing power sharing government in Northern Ireland states that “the parties have agreed that the use of the petition of concern should be reduced, and returned to its intended purpose … [used] only in the most exceptional circumstances and as a last resort.”80

83.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. 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 to the customs arrangements. This reiterates that consent can be given by a majority of the members of the Assembly present and voting.81

84.The arrangements for continuing customs and tax arrangements in the Withdrawal Agreement are different to those that characterise decision-making in Northern Ireland, based on the structures of the Belfast/Good Friday Agreement and embedded in the Northern Ireland Act 1998. They allow for simple majority decision-making in the Assembly and do not require the cross-community decision-making processes that otherwise apply to important political and constitutional matters in Northern Ireland. We call on the Government to explain the rationale for the simple majority voting mechanism.

Part 4, clauses 21–24

85.Clauses 21–24 of the Bill make provision 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 an “appropriateness” test equivalent to section 8(1) of the 2018 Act.

86.These powers are also designed to facilitate the new customs arrangements that will apply in relation to Northern Ireland goods.82 They give ministers power to define “qualifying Northern Ireland goods” for the purpose of the 2018 Act.83 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”.84

87.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.

88.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.

89.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.”85

90.The DPRRC described clause 21 as “a significant new provision” and the powers in section 8C(1) as “the most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require one or more Acts of Parliament.”86 We agree with the DPRRC that the powers in clause 21 to modify the 2018 Act should be limited to the minimum necessary and that the purpose of the power should be made clear. The Government must justify the powers in new section 8C(1)–(2) and explain why they are not subject to the same limits as those in section 8 and new section 8B of the 2018 Act.87

91.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 in schedule 2 to the 2018 Act. As in the 2018 Act itself, the wide powers for ministers are mirrored at devolved level.

92.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.

93.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.”

94.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.

95.The Ireland/Northern Ireland Protocol is of the highest importance. It is skeletal in places, to be supplemented with details that are subject to further negotiation and agreement. In addition, many of the provisions relating to Northern Ireland are not temporary, as they will last beyond the end of the implementation period. These factors highlight the need for detailed parliamentary scrutiny in future both at Westminster and Stormont.

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