Devolution Issues In The EU Withdrawal Bill
One of the biggest sticking points concerning the EU Withdrawal Bill lies around a satisfactory resolution for devolution settlements. Indeed in many ways what is being exposed as we get through the legislative process of leaving the EU is the fragility or weakness of our current constitutional arrangements.
As the Constitution Committee interim report said, the EU (Withdrawal) Bill "raises a series of profound, wide-ranging and inter-locking constitutional concerns”. Notable is the problem of not just the Irish border but also what now is the status of an international Treaty (within which the agreement is lodged) and the future of the democratically elected Assembly and North/South Irish Ministerial Council.
The EU(Withdrawal) Bill is shining a light into many areas of our constitution and testing them in a way that has not happened before.
This briefing is highlighting just some of the issues that the UK Government has to address and resolve quickly if we are to move forward. It also makes some suggestions about what needs to be in place to move us forward, rather than backwards. In particular this briefing considers:
The role of the JMC
A Welsh perspective on what is now required
The role of the JMC
The UK’s Referendums
It is easy – especially in England – to forget that the Brexit referendum is one of a set of referendums held in recent years. Rather than go ahead only on the basis of the Brexit vote, it would be better to seek a way of reconciling the whole set –
1. The referendum on establishing a Scottish Parliament 1997 (which was followed by the 2014 referendum which reaffirmed Scotland’s place in the UK).
2. The referendum on establishing the Welsh Assembly 1997 and increasing its powers 2011.
3. The referendum on the Belfast Good Friday Agreement 1998.
4. The referendum on EU withdrawal 2016.
If the EU referendum has democratic legitimacy on the basis of a 52% vote, then surely the other referendums, with higher percentage affirmative votes, have legitimacy too.
How can all these referendum results be reconciled within the context of the EU Withdrawal Bill?
The Bill as currently drafted does not achieve this, because it tries to grab too much power for Westminster and Whitehall. The UK Government has rightly had second thoughts since the Bill was published, came forward with its own amendments at Lords Committee Stage, and then withdrew them again. They seem to be admitting there is a problem but they have not come up with a solution.
1. The Belfast Good Friday Agreement should be respected. This will probably mean Northern Ireland remaining within the customs union. If the UK Government has any other practical proposal, it should come forward with it as soon as possible. Before that aspect gets resolved, the principle of respect for the Agreement should be added into the Withdrawal Bill, at this stage leaving open the question of how it is to be achieved.
2. The powers of the Scottish Parliament and Welsh Assembly should be maintained. There is a strong case at times and on some issues for a united approach across the UK, but the power to decide on such an approach should not be left up to the UK Government, with mere consultation rights for the devolved bodies. One way of addressing this problem would be to boost up the power of the Joint Ministerial Committee, and the role of the devolved bodies within it.
The JMC already brings together representatives of the governments of the UK, Scotland, Wales, and Northern Ireland, to discuss matters of common interest, which of course at present principally means Brexit. However the JMC has no power: it is simply for discussion, consultation, and voluntary coordination. In the context of Brexit, that is not sufficient.
The JMC is needed now to perform two functions:
(1) To prevent Brexit from involving a ‘power grab’ by the UK Government, undermining the devolution settlements agreed in previous referendums. This is particularly a problem with Clause 11 of the Bill as currently drafted.
(2) To provide a mechanism whereby UK frameworks can be agreed between the four different governments, to coordinate for example policies on agriculture and the environment.
In order to achieve this, the JMC should be put on a statutory basis, with clear powers, membership, and voting arrangements. This would replace the current “typically British” constitutional arrangement based on gradual evolving informal understandings.
One possibility is for the JMC to require majority voting. With four members – appointed from the UK Government, Scotland, Wales, and Northern Ireland – this would imply the need for an affirmative vote of three members (or two out of three when the Northern Ireland Executive is suspended). This in turn implies that the UK Government would need to secure support from most of the devolved bodies in order to achieve a decision in favour of its proposals. It would no longer be able to simply overrule them.
The JMC would effectively become a Council of Ministers for the UK. This is not the only option, but if all the UK’s referendum results are to be respected, some solution to protect the devolution settlements and peace in Northern Ireland will need to be found before the Withdrawal Bill is finalised.
Churches Together in Wales: A Welsh perspective on what is now required
The general treatment of devolution
We welcome the various promises by Government ministers in the Lords to reconsider a range of matters relating to devolution. We continue to seek the removal of three kinds of provision in the Bill which are inimical to good relations between the nations and governments of the UK. These are provisions which:
Permit Ministers of the Crown to amend devolved legislation with oversight provided by the Westminster Parliament rather than the National Assembly. This runs counter to the usual principle of parliamentary accountability.
Permit Ministers of the Crown, as ministers with responsibility for matters in England which are devolved to Wales, to amend the law in England while ministers in Wales are restricted from amending laws in the same areas in Wales. This creates an inequality between the nations of the UK, and could endanger the smooth functioning of the UK single market, the maintenance of which is one of the key policy aims of the Bill.
Restrict Welsh Ministers from acting and the National Assembly from legislating in devolved areas without the consent of Ministers of the Crown. This would include the powers in the proposed (and withdrawn) revised Clause 11(1)-(3) and Schedule 3 paras 1-3 for Ministers of the Crown to specify areas in which to restrict devolved legislative and executive competence. We believe that this runs counter to the wording on the ballot paper for the 2011 devolution referendum in Wales, which stated:
“If most voters vote “yes”, the Assembly will be able to make laws on all matters in the 20 subject areas it has powers for, without needing the UK Parliament’s agreement.” (our emphasis).
We believe that legislation must respect the results of both the 2011 and 2016 referendums.
‘Retained EU law’ as defined (especially in Clause 2) includes domestic, including devolved, legislation implementing EU law. Any restriction on devolved legislatures amending their own laws in such areas is a clear reduction in devolved competence. No such restriction is imposed by the Bill on the Westminster parliament.
We welcome the fact that the revised Clause 11, later withdrawn, was more suitable to a reserved powers model of devolution than the original Clause 11 (which still stands), which in effect reverts to a “conferred powers” model across a swathe of devolved areas.
We welcome new restrictions on Ministers of the Crown amending the Government of Wales Act 2006 by regulation under Clause 7, but regret that powers of this kind remain under Clauses 8 and 9. We believe that changes to the devolved settlement should be made by primary legislation and therefore be subject to devolved legislative consent.
The UK Government memorandum on areas to be subject to UK frameworks
We welcome the publication of this memorandum, and the acknowledgement that many areas of retained EU law can be treated under the existing devolution settlement, or via non-legislative frameworks agreed through inter-governmental co-operation.
We welcome the assurance of Lord Keen in the Clause 11 debate that HM Government envisages that new UK frameworks in the (up to) 24 areas identified in the memorandum would be brought in through primary legislation, requiring the legislative consent of the devolved parliaments. We wish to see that enshrined on the face of the Bill.
While the memorandum is not a legislative instrument, we are concerned at the wording of some of the items. For example
The first item is “Policies and Regulations under the EU Common Agricultural Policy…”. The National Assembly currently uses wide discretion with regard to the implementation of the policies of the CAP. The wording in the memorandum implies that this discretion might be narrowed by the UK frameworks.
The penultimate item is ‘Public procurement’. Specific EU legislation is mentioned here, but the subject area is one in which Welsh Government and civil society have already indicated that new freedoms following Brexit would be welcome.
We agree with those Lords who wish to see the areas to be reserved, pending the agreement of legislative frameworks, listed in a Schedule to the Bill rather than giving Ministers of the Crown power to specify by regulation. In a number of areas currently covered by EU law (such as agricultural co-operation and operating state aid rules) ministers and officials from the 4 UK governments already meet regularly and co-operatively to operate the current EU frameworks. This was little acknowledged in the Committee stage debate – devolution does not prevent co-operation, indeed it mandates it. We therefore support the spirit of Lord Mackay of Clashfern’s Amendments 318A to arrange the negotiation of UK common frameworks in this way.
We are concerned at the omission from the memorandum of regional development and structural funds. The administration of these funds has been a devolved matter since 1999 and of considerable importance to Wales. HM Government intends to establish a ‘UK Shared Prosperity Fund’ although detailed proposals are awaited. The third sector would wish to see allocation of regional development funds subject to greater devolved discretion than previously, and certainly not be reserved.
Other matters of continuing concern
Schedule 7 purports to legislate for procedures in the National Assembly, especially as it does so in a way which requires the reader to work out the “equivalent” procedure of the Assembly to that provided for in Westminster. Ministers should not be answerable to one parliament for enacting procedures decided in another, as this muddies the waters of democratic accountability.
The power under Schedule 4 Part 1 for Ministers of the Crown to make new fees, charges and “tax-like charges”. It is a democratic principle that elected legislatures rather than governments should impose taxes (“no taxation without representation”). In devolved areas, it should therefore be the National Assembly that legislates the imposition of taxes. However, while powers are held at Westminster under Clause 11, Ministers of the Crown would be able to do so without Assembly consent.
Clause 8 and Schedule 2, Part 2 give wide powers to Ministers of the Crown regarding ensuring that the UK continues to meet its international obligations. We are concerned that these could allow Ministers of the Crown to amend devolved legislation to bring it into line with newly created international obligations, e.g. free trade treaties negotiated with countries outside the EU. We believe that any devolved legislative consequences to new trade agreements should be subject to the usual procedures of Westminster and the National Assembly.