12 March 2018
The Law Derived from the European Union (Wales) Bill
On 27 February the Welsh Government published the draft Law Derived from the European Union (Wales) Bill. The final Bill was laid on 7 March 2017. More information can be seen in this Research Service and Legal Service Bill Summary.
The Bill is intended to preserve EU law covering subjects devolved to Wales on withdrawal of the UK from the EU. Further, it will enable the Welsh Ministers to ensure that legislation covering these subjects works effectively after the UK leaves the EU and the European Communities Act 1972 is repealed by the European Union (Withdrawal) Bill (“the Withdrawal Bill”).
The motions on the Emergency Bill
On Tuesday 6 March two motions were discussed in the Plenary session of the National Assembly for Wales. According to the procedure for Emergency Bills, one motion seeks permission to introduce the Bill, the second seeks approval of a timetable. The motions said:
Motion NDM6672 Julie James
To propose that the National Assembly for Wales, in accordance with Standing Order 26.95:
Agrees that a government Bill to be known as the Law Derived from the European Union (Wales) Bill and to be introduced in the Assembly be treated as a government Emergency Bill.
Motion NDM6673 Julie James
To propose that the National Assembly for Wales, in accordance with Standing Order 26.98(ii):
Agrees that the timetable for the government Emergency Bill to be known as the Law Derived from the European Union (Wales) Bill will be as set out in the Timetable for consideration of the Law Derived from the European Union (Wales) Bill laid before the Assembly on 27 February 2018.
The Cabinet Secretary for Finance, Mark Drakeford AM, explained why an Emergency Bill was needed. He said that whilst progress has been made on this matter in recent weeks, negotiations had not yet reached a point where the Welsh Government can be satisfied that the Withdrawal Bill will be amended so as to meet all concerns. He continued:
We are therefore left with no choice but to bring forward our own continuity Bill, the law derived from the European Union (Wales) Bill, the LDEU Bill, which both ensures the law in Wales remains fully operable after exit day and provides that decisions about devolved laws are made in Wales and by this Assembly, hence the need to bring forward a Bill and to do it on an emergency basis.
Having given the UK Government as much time as possible to make the necessary changes to its Bill, we have left the introduction of the LDEU Bill to the last possible moment, but that last possible moment has now arrived. Implementation of the Bill will require a substantial, indeed a wholly unprecedented, volume of legislative action on the part of the Welsh Ministers and the National Assembly. The limited time left between now and exit day means that the application of the normal Bill procedures would defeat its own object by leaving too little time for implementation once a Bill had been passed.
During the debate on the Motion David Melding AM, speaking for the Welsh Conservatives said he agreed with the Welsh Government that the best approach to this issue remains an amended EU Withdrawal Bill which can be given legislative consent by the National Assembly and the Scottish Parliament. However, the Welsh Conservatives took a different approach from the Welsh Government and would be opposing the motion because:
[…] the proper check and balance here—and it is a great test of the devolution settlement, I agree with that—is in the LCM procedure. We do not believe that an EU withdrawal Bill can successfully proceed without the consent of the National Assembly and the Scottish Parliament. It is an appropriate device, the LCM, and it is one that gives us the constitutional protection that the Minister is seeking.
He also outlined the Welsh Conservatives concerns about scrutiny. He questioned how the Assembly would scrutinise an Emergency Bill on such a major constitutional matter: “Just reflecting on the timetable, it would be so lightning fast that scrutiny would only be cursory, where it was possible at all, over a certain number of limited areas.”
Leanne Wood AM said that Plaid Cymru had argued for the Bill to be introduced earlier but conceded that introducing the Bill under emergency procedure was better than having no Bill at all. She said that:
At this stage in the EU withdrawal process, there is no convincing argument for sitting back and allowing Westminster to intercept the powers that are already devolved. We have learnt the hard way, time and time again, not to trust Westminster
Neil Hamilton AM said he intended to support the motions. He explained how his views had changed:
I did have a suspicion at first that it was a ploy to try to make the process of leaving more difficult than it need be, and perhaps even to frustrate it altogether. I have, some time ago, abandoned that fear, and I accept the bona fides of the Government in this respect that this is a genuine attempt to force the UK Government to the table to do the decent thing that all parties in this house, even the Conservative Party here, accept should be done—that the EU withdrawal Bill should be amended to bring about the result that we all want to see achieved.
The motion to introduce was passed by 44 votes to 10 with no abstentions.
The Stage 1 General Principles Plenary debate will be held on 13 March. The Bill is scheduled to be considered by a Committee of the Whole Assembly at Stage 2 on the 20 March and Stages 3 and 4 take place in Plenary on the 21 March.
The eighth Joint Ministerial Committee EU Negotiations, (JMC (EN) met on 8 March. In an unprecedented step, this is the second time in a fortnight that the Committee has been called together to discuss a possible agreement on amendments to the devolution provisions in the Withdrawal Bill. Subsequently, a Communique was issued which stated:
The Committee discussed the UK Government’s proposed amendment to clause 11 and progress made towards reaching agreement. The Committee noted the timings for the Committee Stage debate in the House of Lords. All administrations remained committed to reaching agreement on the EU (Withdrawal) Bill. Discussions on further detail on the proposal would continue between the UK Government and Scottish and Welsh Governments in the coming weeks.
JMC (EN) noted and agreed the UK Government’s intention to publish its frameworks analysis and committed itself to continuing work towards agreements on common frameworks.
The Cabinet Office press release that accompanied the Communique said that there was need for Parliament to have a detailed debate on the issues that have been discussed for some time now between the various governments. The House of Lords are due to debate Clause 11 of the Bill in just over a week therefore the UK Government intends to publish its proposed amendments to the Bill. It stated
The proposed amendment will mean that all EU powers that intersect with devolved competencies will go directly to the devolved parliaments and assemblies at the time of Brexit. In addition, there would be a provision for the UK Government to maintain a temporary status quo arrangement over a small number of returning policy areas where an agreement for a UK framework had not been reached in time for EU Exit. This is to protect the UK common market and ensure no new barriers are created for consumers and businesses.
The UK government published the frameworks analysis on 9 March. JMC(EN) noted and agreed the UK Government’s intention to publish its frameworks analysis and committed itself to continuing work towards agreements on common frameworks.
The Cabinet Secretary for Finance, Mark Drakeford said:
If I was trying to explain this to somebody who isn’t close to it all, I would say this: the UK government wants to take some responsibilities that are today held by the national assembly and put them in a freezer that would be held here at Westminster.
The three issues we wanted to talk about today was how do those items get put in the freezer – who decides that’ll happen?
How long are they to be held in the freezer? And how will they be taken out of the freezer at the end of the process?
And we put forward practical ideas on all those three matters.
Mike Russell, the Scottish Minister for UK Negotiations on Scotland’s Place in Europe said:
[…] it was deeply disappointing that the UK Government did not bring forward any new proposal today and are pressing ahead with a bill that, even with their proposed amendment, would allow them to unilaterally take control of devolved powers without the agreement of the Scottish Parliament.
In contrast, in our effort to secure an agreement, the Scottish and Welsh Governments have made another offer to the UK Government today.
We are clear that the EU Withdrawal Bill must be amended so that the devolution settlement cannot be changed without the consent of the Scottish Parliament.
That is why we said to the UK Government that if we can agree the areas where UK-wide legislative frameworks may be required after Brexit and if it is also agreed that consent to the necessary parliamentary orders will be required from the Scottish Parliament in each case, then we would take steps to reassure the UK Government that Scotland would not unreasonably withhold that consent.
Given there has been no agreement the Continuity Bills in Cardiff and Edinburgh look set to proceed.
Article by Alys Thomas, National Assembly for Wales Research Service