The European Union (Withdrawal) Bill: Devolution- Briefing by the House of Commons Library

Read about the parts of the European Union (Withdrawal) Bill concerning devolution, ahead of the House of Commons consideration of them in committee.

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This briefing paper has been prepared for the Committee Stage of the European Union (Withdrawal) Bill 2017-19 [Bill 5] (the EUW Bill) in the House of Commons. It concerns provisions in the Bill about devolution, which are due to be considered on days 4 and 5, scheduled for 4 and 6 December 2017. It is one of a series prepared for Committee Stage.

The Bill

The EUW Bill cuts off the source of European Union law in the UK by repealing the European Communities Act 1972 and removing the competence of European Union institutions to legislate for the UK.

The Department for Exiting the European Union (DEXEU) has published Explanatory Notes to the Bill, a series of factsheets, and a Delegated Powers Memorandum (DPM) addressed to the House of Lords Delegated Powers and Regulatory Reform Committee.

The paper prepared for second reading, European Union (Withdrawal) Bill, CBP 8079, 1 September 2017, covers all of the provisions in the Bill. 

The Bill had its second reading debate in the House of Commons on 7 and 11 September 2017. The Programme Motion passed at the end of the second reading debate provides for eight days in Committee of the Whole House.

A large number of amendments have been tabled for Committee Stage. An up to date list of amendments can be found on Parliament’s bill pages online.

This paper

This paper addresses:

  • Clauses 10 and 11 and their associated Schedules 2 and 3. These concern devolution, including the legislative competence of the devolved legislatures in respect of retained EU law, the executive competence of devolved Ministers, and the power of those Ministers to make corrective regulations, and some other regulations, as a result of withdrawal from the EU.
  • The legislative consent memoranda submitted by the Scottish and Welsh Governments, in which they explain their reasons for not recommending that the Scottish Parliament and the National Assembly for Wales give their consent to the Bill.
  • The question of UK or GB policy frameworks, and the role of the Joint Ministerial Committee, the EU negotiations sub-committee of which has agreed principles for the frameworks.
  • The amendments to the Bill drafted by the Scottish and Welsh Governments and tabled by MPs in the House of Commons.

A separate paper, Brexit Negotiations: The Irish border question, CBP 8042, 17 July 2017, covers matters to do with Northern Ireland, Ireland and UK withdrawal from the EU, especially the border. This paper focuses on the matters in the Bill, which are to do with internal UK constitutional arrangements.

Provisions on devolution

The EUW Bill replaces restrictions on devolved competence arising from the UK’s international obligations under the EU Treaties with new restrictions based solely on an Act of the UK Parliament (clause 11).

Devolved legislatures and executives will not be able to modify retained EU law in a way that is incompatible with EU law, with exceptions for Ministers correcting deficiencies, complying with international obligations, or implementing the withdrawal agreement. They will remain bound by EU law as it stands immediately before exit day, unless and until the UK Parliament agrees to release them from this constraint.

The EUW Bill creates fewer rights for devolved legislatures and executives to modify retained EU law than apply to their UK counterparts. This change is justified by the UK Government as a way of continuing existing restrictions while decisions are taken on where common policy approaches are needed.

The EUW Bill therefore also contains a power for the UK Government, with agreement from the UK Parliament and relevant devolved legislature, to lift the new restrictions on competences in clause 11and Schedule 3, Part 1. This power would enable areas of competence to be transferred to the devolved legislatures by Order in Council, once agreement had been reached between the UK Government and the relevant devolved authorities.

The EUW Bill also provides powers for devolved Ministers in Schedule 2 that correspond broadly to those for UK Ministers in clauses 7, 8 and 9. They will be able to modify retained EU law (apart from directly applicable law such as regulations) to correct deficiencies, to implement international obligations, and to implement the withdrawal agreement. Devolved ministers can exercise these powers independently subject to certain restrictions, including that all of the contents must be within competence. However, the same powers are given concurrently to UK Ministers.

The Government’s White Paper of March 2017 had suggested that there would be a significant increase in the decision-making power of the devolved administrations, and that former EU frameworks would be subject to decisions by democratically elected representatives.

Reaction

The First Ministers of Scotland and Wales have described the Bill as a “power-grab”,[1] and their Governments have drawn attention to the democratic mandates of their own institutions, which they believe are neglected by the Bill.

The Scottish and Welsh Governments have published Legislative Consent Memoranda in which they do not recommend giving consent for the Bill. They drafted joint amendments to the Bill, which have been tabled by MPs in the House of Commons.

A full range of statements and reports from the devolved legislatures is available in Brexit: devolved legislature business, CBP 7815, which is updated weekly.

The House of Commons Scottish Affairs Committee published a report on the Bill, European Union (Withdrawal) Bill: Implications for devolution, HC 375 2017-19, 14 November 2017.

The House of Commons Public Administration and Constitutional Affairs Committee has an ongoing inquiry on Devolution and Exiting the EU.

The House of Lords Constitution Committee has an ongoing inquiry on the European Union (Withdrawal) Bill.

[1]     Nicola Sturgeon and Carwyn Jones, Joint Statement, 13 July 2017.

Commons Briefing papers CBP-8154

Author: Paul Bowers

Note: This briefing was originally posted by House of Commons Library here

Malene Bratlie