01 May 2018
Following the failure at a number of Joint Ministerial Committee (EU Negotiations) meetings to reach a consensus on changes to clause 11 of the European Union (Withdrawal) Bill (the Withdrawal) Bill, the Welsh Government announced on 24 April that it had reached an agreement with the UK Government. Amendments tabled by the UK Government will be debated by Members of the House of Lords during Report Stage of the Bill on Wednesday 2 May. The UK Government has also published a supporting Intergovernmental Agreement on the Bill and the Establishment of Common Frameworks. This Agreement sets out additional commitments on how the amendments will work in practice.
Clause 11 Developments
The original clause 11 placed a new restriction on the legislative competence of the devolved legislatures after Brexit, in that they would not have been able to pass legislation which is incompatible with the body of EU law that will be retained by the Bill, unless the restriction was lifted by Order in Council.
The amendments agreed between the UK and Welsh Governments invert 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 amendments would give powers to UK Ministers to make regulations imposing restrictions in devolved areas which can last for five years once made. UK Ministers would be able to use the power to place restrictions for up to two years after ‘exit day’, which is currently set as 29 March 2019, so the Assembly’s powers could still be subject to restrictions in March 2026.
The Intergovernmental Agreement states the policy areas likely to be subject to restrictions are the 24 areas identified in the frameworks analysis published by the UK Government as likely to require legislative UK-wide frameworks after Brexit and some others still under discussion
Regulations placing restrictions on the Assembly’s powers must be laid in draft and approved by the UK Parliament, but only after the Assembly has made a ‘consent decision’ in relation to laying the draft or after 40 days have passed without the Assembly making a decision. A ‘consent decision’ includes a decision not to agree to the laying of the draft or a decision to refuse consent, meaning that restrictions can be placed on the Assembly’s powers without its consent. In such cases, the UK Government must explain why they have decided to lay the draft in any event. They must also lay any statement provided by the Welsh Ministers setting out their opinion as to why the Assembly has made that decision.
Despite the proposed amendments enabling UK Ministers to pass regulations placing restrictions on legislative competence without the consent of the Assembly, the Intergovernmental Agreement states that the UK Parliament will “not normally” be asked to approve clause 11 restrictions without the consent of the devolved legislatures.
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 on the restrictions in place,. UK Ministers must also provide a copy of every report laid before Parliament to the Welsh Ministers.
With regards to legislating for England in areas subject to restrictions in Wales, the Intergovernmental Agreement states that the UK Government commits not to bring forward legislation in those areas for as long as the restrictions are in force.
Welsh Government Response
The Cabinet Secretary for Finance, Mark Drakeford, made a statement in plenary on 25 April in which he described the agreement as “a major advance over the original proposals.”
On Friday 27 April the Welsh Government laid a supplementary Legislative Consent Memorandum (LCM) in relation to the revised Bill before the Assembly. The LCM confirms that the changes to the Bill, along with the Intergovernmental Agreement, are sufficient to enable the Welsh Government to recommend that the Assembly gives its consent.
Scottish Government Response
The Scottish Government has declined to join the agreement between the Welsh and the UK Government. Michael Russell, Scotland’s Minister for UK Negotiations on Scotland’s Place in Europe, said that they “cannot support any proposal that would enable the powers of the Scottish Parliament to be constrained without the agreement of the Scottish Parliament.” In a letter to the UK Prime Minister, the Scottish First Minister set out two possible ways forward including removing clause 11 entirely or placing a requirement for the consent of the Scottish Parliament on the face of the Bill.
The Welsh Government has committed to working with both Governments until the last moment to see if any further refinements to the Bill can be made. The JMC (EN) is due to meet again this week to track any progress.
Continuity Bill and Next Stages
The Welsh Government’s ‘continuity’ Bill, the Law Derived from the EU (Wales) Bill, was passed as an alternative to the Withdrawal Bill on 21 March.
During the four week period of intimation, the Attorney General for England and Wales referred the Bill to the Supreme Court for a decision on whether it is within the Assembly’s legislative competence.
Following the consensus on amendments, the Intergovernmental Agreement states that steps will be taken to repeal the Welsh Continuity Bill before the Withdrawal Bill receives Royal Assent and that the UK Government’s legal officers will also seek to withdraw the reference to the Supreme Court.
Members of the House of Lords will debate the UK Government amendments and other devolution provisions on Wednesday 2 May before Report Stage concludes on 8 May. The Bill will then go to Third Reading on 16 May before returning to the Commons for consideration of amendments made by the Lords.
The Assembly is expected to debate the Legislative Consent Motion related to the Bill between Report and Third Reading Stages in the House of Lords.
Article by Manon George, National Assembly for Wales Research Service