16 November 2018
On Tuesday 20 November the Assembly will debate the draft Law Derived from the European Union (Wales) Act 2018 (Repeal) Regulations 2018 (PDF 52KB) which seek to repeal the Welsh Continuity Act and vote whether to allow the regulations to be made.
What is the Law Derived from the EU (Wales) Act 2018?
The Withdrawal Bill (now the European Union (Withdrawal) Act 2018), which converts EU law into domestic law, as introduced placed a restriction on the ability of the devolved legislatures to pass any legislation which is incompatible with the body of EU law retained by the Bill. The Welsh Government argued that this amounted to a ‘power-grab’ over areas of devolved competence by the UK Government.
Following the failure to reach an agreement on amendments to the Withdrawal Bill, the Welsh Government decided to introduce its own continuity legislation, the Law Derived from the European Union (Wales) Act 2018 (‘the Continuity Bill’), to transfer EU law in areas already devolved to Wales into Welsh law on exit day.
On 27 February 2018 the Assembly agreed to consider the Welsh Government’s continuity legislation as an emergency bill. It was introduced on 7 March and passed through the Assembly in little over two weeks.
The Scottish Government took similar measures and introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (‘the Scottish Continuity Bill’).
Both bills were referred by the UK Government’s legal officer to the Supreme Court for a ruling on whether they fell within the legislative competence of the devolved legislatures.
Why is the Welsh Continuity Act being repealed?
On 25 April the Welsh Government announced that it had come to an Intergovernmental Agreement with the UK Government on the Withdrawal Bill. As part of the agreement, both governments agreed that steps would be taken to repeal the Welsh Continuity Bill and that the reference to the Supreme Court would be withdrawn.
After the Legislative Consent Memorandum in relation to the Withdrawal Bill was debated and approved by the Assembly in Plenary on 15 May, the Secretary of State for Wales wrote to the Llywydd confirming that the reference to the Supreme Court would be withdrawn. As a result, the Bill proceeded to Royal Assent and became an Act on 6 June.
An Assembly Act is normally repealed by passing another Act. However, the Continuity Bill was amended during Stage 3 consideration to enable Welsh Ministers to repeal the Act via subordinate legislation.
What steps must be taken to repeal the Act?
Regulations made under section 22 of the Welsh Continuity Act to repeal the legislation must be subject to an enhanced scrutiny procedure. Therefore, on 8 June the Welsh Government laid draft regulations to that effect before the Assembly for a 60-day period.
The 60-day period expired on 1 October. The Act requires the Welsh Ministers have regard to any representations, any resolution of Assembly, and any recommendations of an Assembly Committee charged with reporting on the draft regulations, that are made with regard to the draft regulations during the 60-day period.
Only one representation was made during this period and that by Constitutional and Legislative Affairs Committee. The Committee’s report (PDF 79KB) stated:
We note the significance of these Regulations and how the repeal would mean that important constitutional and legal matters (such as the continuation of EU-related Welsh law after exit and the powers of the Welsh Ministers to correct deficiencies in retained EU law) will be dealt with under the European Union (Withdrawal) Act 2018.
We also note that the repeal of the Act forms part of the Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks.
The Continuity Act requires the Welsh Ministers to lay before the Assembly a statement stating whether any representations were made, and if any representations were made, giving details of them if they wish to make the regulations in terms of the draft after the expiry of the 60—day period. A statement (PDF 80KB) to that effect was laid on 13 November.
What about the Scottish Continuity Bill?
The Scottish Parliament withheld legislative consent to the Withdrawal Bill and the Supreme Court hearing about whether the Scottish continuity legislation is within legislative competence went ahead on 24 and 25 July. The Counsel General for Wales participated in the case. He said that the issues in the case:
…raise questions regarding all of the devolution settlements in the UK and are not all limited to the Scottish Bill nor to the Scottish devolution settlement. So, our participation in the Scottish case before the Supreme Court touches upon these issues that extend beyond the Scottish settlement and that relate to the future functioning of the UK after Brexit, where it is vital that Wales has a voice.
A date for the Court to hand down its judgment is yet to be announced. However, on 5 November the First Minister told the External Affairs and Additional Legislation Committee that the Welsh Government is not waiting for ruling before repealing the Welsh Act. He said:
I would argue we’ve actually protected ourselves because we have an agreement in place. We could have not agreed; we could have ended up in the Supreme Court. But what happens if the Supreme Court then says, ‘Well, actually, the UK Government can do this’? The Scots have no agreement. We have an agreement. I suppose the UK Government could terminate the agreement, but that’s a sign of bad faith straight away, and I’ve said before that we have an agreement and the UK Government and ourselves have to live up to the terms of that agreement.
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Article by Manon George, National Assembly for Wales Research Service