19 March 2018
The European Union (Withdrawal) Bill
On Tuesday 13 March the UK Government tabled their proposed amendments to clause 11 of the European Union (Withdrawal) Bill (the Withdrawal Bill) for consideration at Committee Stage in the House of Lords. Clause 11 as currently drafted places a new restriction on the legislative competence of the devolved legislatures post Brexit, in that they will not be able to pass legislation which is incompatible with the body of EU law that will be retained by the Bill, unless the restriction is lifted by Order in Council.
As discussed in a previous post, the Welsh and Scottish Governments are opposed to clause 11 and want it amended. Following the failure at a number of Joint Ministerial Council (EU Negotiations) (JMC(EN)) meetings to reach an agreement, both governments have introduced their own ‘continuity’ bills.
UK Government Amendments
The UK Government’s amendments, tabled by Lord Callanan (lead amendment is number 302A), have inverted clause 11 by giving the devolved legislatures the freedom to legislate on any areas within their powers, as opposed to placing a blanket restriction on legislative competence. However, the proposed amendment gives powers to UK Ministers to make regulations imposing restrictions in devolved areas. These regulations would need to be approved by both Houses of Parliament but would not need to be agreed by the Assembly.
An indication of the areas likely to be subject to restrictions imposed by UK Ministers is given in the frameworks analysis (PDF, 197KB) published by the UK Government. The document lists 24 policy areas in which the UK Government considers that legislative frameworks may be needed. For further information on the frameworks analysis, see our recent blogpost.
Under the proposed changes to clause 11, there would be no requirement to seek the consent of the Assembly before making regulations changing the devolution settlement. However, UK Ministers would have a duty to consult the Welsh Ministers. They must also provide information to both Houses of Parliament explaining the effect of the regulations and the response of the Welsh Government to the consultation on the regulations.
The amendments would also enable UK Ministers to repeal the power to impose restrictions on the Assembly’s competence and would require UK Ministers to report to the UK Parliament every three months whether the power should be repealed, taking into account the progress in establishing UK-wide common frameworks.
In a letter to all Assembly Members, the Secretary of State for Wales, Alun Cairns, set out his views on the amendments to clause 11 and described them as a ‘significant offer’.
Response of the Welsh and Scottish Governments
Following the JMC (EN) meeting in London on 8 March, where the UK Government’s proposed amendments were discussed, the Cabinet Secretary for Finance, Mark Drakeford, said:
…I was left with a clear understanding that it would not be the Government’s intention to press such amendments to a vote, and that there would be opportunities for further discussion before an amendment in final form was produced for Lords Report stage. The Welsh Government has been very clear it would have been far preferable to have had amendments already agreed between the three Governments before now. However, in my view, a UK Government amendment at this stage does no more than protect its position, as a fall-back option, in much the same way as our Continuity legislation does for the Welsh Government and National Assembly.
The First Minister, Carwyn Jones said:
The UK government is moving in the right direction, but its latest offer, which has not been agreed with the devolved administrations, is insufficient, and we could not recommend the Assembly to give its legislative consent to the Withdrawal Bill on the basis of the amendment they have proposed.
The Minister for UK Negotiations on Scotland’s Place in Europe, Mike Russell, in a letter to all members of the Scottish Parliament, described the proposed amendments as falling ‘well short of arrangements that could be recommended for legislative consent by the devolved government.’ According to the Minister:
….a requirement only to consult the devolved administrations means that in practice the UK Government could ultimately make regulations notwithstanding the opposition of the devolved administrations, entirely at its discretion, with no safeguards to protect the interests of the devolved legislatures; and with none of the agreed constitutional arrangements in place that we would be entitled to expect if devolved competence is to be adjusted, even for a temporary period.
The Scottish Government considers that any regulations made under the proposed new clause 11 should be approved by the devolved legislatures as well as the UK Parliament and that the UK Government’s amendments need to be considered alongside the frameworks analysis document:
The Scottish Parliament is being asked to agree these amendments with no certainty about the areas in which frameworks will be established, how these will work, how they will be governed and how we will go from temporary restrictions to longer terms solutions. That is unacceptable.
Similarly, the Cabinet Secretary for Finance, Mark Drakeford, told the External Affairs and Additional Legislation Committee on 5 March, that the Bill and the work on frameworks ‘dovetail into each other’:
…the principle of agreement, rather than the principle of imposition, is fundamental to us.
Latest Developments and Next Stages
On Wednesday 14 March a plenary meeting of the Joint Ministerial Committee (JMC (P)) was held between the UK Prime Minister Theresa May, the Welsh First Minister Carwyn Jones, and the Scottish First Minister Nicola Sturgeon. However, no agreement was reached on amendments to the Withdrawal Bill during the meeting.
According to the BBC, Carwyn Jones said progress had been made but he was not yet in a position to recommend that consent should be given to Bill.
I am hopeful that we will be in a position in the next few days – no more than a week or two I would say, as time is running out but we are not there yet.
In a press statement issued by the Scottish Government after the meeting, Nicola Sturgeon said:
The Scottish and Welsh Governments have made clear that there is a very important issue of principle at stake and we cannot and will not recommend approval of a bill that would undermine devolution by restricting our powers, even temporarily, without the consent of our Parliaments.
We have already compromised by accepting that some powers could be used to agree frameworks on a UK wide basis – however, this must be subject to the consent of the devolved nations.
In the meantime, the Welsh and Scottish Governments will continue with their continuity bills. Stage 2 consideration of Welsh Government’s bill, the Law Derived from the European Union (Wales) Bill, will take place in the Committee of the Whole Assembly on Tuesday 20 March. The following day, members of the House are Lords are expected to debate clause 11 of the Bill.
Article by Manon George, National Assembly for Wales Research Service