Legislative Consent and the European Union (Withdrawal) Bill (2017-19)

The UK Government introduced its European Union (Withdrawal) Bill (2017-19) (EUW Bill) on 13 July 2017. As introduced, the Bill would have made significant changes to the legislative and executive competencies of devolved institutions. The Government has since made significant amendments to the Bill’s devolved provisions in the House of Lords.

Following those changes, the Welsh Government recommended that the National Assembly for Wales should grant legislative consent for the Bill. The Scottish Government, however, recommended that the Scottish Parliament should withhold consent for it.

Devolved objections to the Bill as introduced

The Scottish and Welsh Governments opposed the Bill as introduced. Each lodged a legislative consent memorandum with the Scottish Parliament and with the National Assembly for Wales (NAW) respectively. In these documents, the Governments raised four main concerns about the EUW Bill’s effect on the devolution settlements. They opposed:

• original clause 11 (and Schedule 3), which would have imposed a broad obligation that devolved institutions cannot “modify retained EU law”;
• aspects of Schedule 2, which would have constrained the powers of devolved ministers in ways that UK Ministers exercising equivalent powers in original clauses 7-9 would not be constrained; and
• the absence of devolved consent requirements for original clauses 7-9. This meant UK Government ministers could use Henry VIII powers, unilaterally, in order to:
  • modify the devolution statutes; and/or
  • change the law in devolved policy areas.

The preliminary view of both devolved Governments was that neither the Scottish Parliament nor the NAW should grant legislative consent for the EUW Bill. The two Governments jointly published a series of amendments designed to address their concerns with the Bill. If those (or equivalent) amendments were accepted, they said, they would reconsider their opposition to the Bill as a whole.

The Continuity Bills

By March 2018, agreement had still not been reached on changes to the EUW Bill that could secure devolved consent. As a consequence, the Scottish and Welsh Governments introduced their own, pre-emptive, legislation, expected to take effect if agreement could not be reached for a UK-wide EUW Bill. The “Continuity Bills” completed their legislative stages on 21 March 2018.

The Bills could not receive Royal Assent, however, because the UK Government referred them to the Supreme Court under a devolution reference. This process exists to clarify whether a devolved Bill, agreed by the relevant legislature, is within its competence. The Supreme Court is expected to consider arguments in relation to the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill on 25-26 July 2018. It will not hear arguments on the Law Derived from the European Union (Wales) Bill because the Attorney General’s reference for it will be withdrawn as part of an agreement reached between the Welsh and UK Governments that it will be repealed before the EUW Bill receives Royal Assent.

Government amendments to the Bill made in the House of Lords

At Lords Report stage there were significant changes made to the EUW Bill in relation to devolution. These changes were made following discussions between the UK and devolved governments in the Joint Ministerial Committee on European Negotiations (JMC (EN)). The Welsh Government agreed to these changes as a compromise but the Scottish Government took the view that they did not go far enough to address their original objections.

As a result of the government amendments made at Lords Report stage, the presumption in the original clause 11 (now clause 15) was effectively “reversed”. Instead of all retained EU law being protected from modification by devolved institutions by default, UK Ministers would have to specify in regulations (approved by the Commons and Lords) which areas it wanted to protect. The power to make those regulations will now be time limited (to 2 years after exit day) and no set of regulations will be allowed to have effect for longer than 5 years. Devolved consent is not required for these regulations to be made but a UK Minister making regulations without consent must justify their reasons for doing so to Parliament under a statutory procedure.

The Intergovernmental Agreement

The UK Government published an Intergovernmental Agreement in late April. It includes a series of political commitments that supplement the legislative changes made at Lords Report stage. This agreement is bilateral: between the UK and Welsh Governments, and has not been agreed to by the Scottish Government.

The Scottish Government opposes this approach because it only binds the UK Government with political promises but the devolved institutions with legal constraints. It considers this to be an inequitable arrangement.

Legislative Consent Motions

On 15 May 2018, the Scottish Parliament withheld consent for the EUW Bill by 93 votes to 30. The National Assembly for Wales, by contrast, granted consent by 46 votes to 9.

The UK Government must now decide whether to legislate without the Scottish Parliament’s consent or to find another way to secure its agreement. Depending on the outcome of the Supreme Court reference for the Continuity Bill, it may also have to decide whether (and if so, how) to accommodate it alongside the EUW Bill itself.