Brexit and devolution: laws and land grabs

Is the European Union (Withdrawal) Bill a “land grab”, as Welsh First Minister Carwyn Jones claims? Prof Michael Keating on this blog suggested it means a new, more limited form of devolution. So has Whitehall really not accepted the reality of devolved power, and defaulted to control? To understand what is going on, we have to dive into the detail.

Retaining EU law

It’s certainly not a “great repeal” bill. Mostly it (sensibly) keeps European law after Brexit, by creating a new category of “retained EU law”. But today the devolved administrations cannot act contrary to EU law, and sometimes simply administer it. Since “retained EU law” still applies to them, on exit day nothing changes. But the bill seeks to keep this body of law reserved to Westminster, ie in its exclusive competence and outside devolved powers, so that they cannot change it unless it is explicitly devolved by an Order in Council.

Continuity during the immediate transition make sense. Perhaps in a transition deal much European law will continue to apply in the UK; since no such deal is yet done, and its terms unknown, it might be prudent, if cautious, to reserve amendment powers to Westminster for a while.

For the longer run, the government say common UK frameworks may have to replace some EU law. This too is correct – think food and agriculture, for example. Reserving retained EU law to Westminster enables UK ministers to decide where such frameworks are required. But is that a unilateral decision for them? The answer is more complex than meets Whitehall’s eye, and requires it to do something new: distinguish properly between its UK and English responsibilities.

Replacing different kinds of European framework

If the UK had never been in the EU, the devolution settlements would have been different, with UK rules in some places where there are now EU ones. But the government cannot simply write retrospectively into the devolution settlements rules that might have been. It has to start from the constitutional division of powers the UK now has, and that has implications for any new UK frameworks.

These might be needed for different reasons. The most obvious is to meet international obligations. For example, the UK hopes to negotiate trade deals with the EU and possibly other countries. At a minimum, it will join the World Trade Organisation, which constrains domestic policy – e.g. limiting subsidies to productive industries. Domestic law must enable the government to meet such obligations.

There is actually no need for Westminster to reserve ‘’retained EU law’’ to itself for this to happen. Each devolution settlement already contains powers for the UK government to direct the devolved bodies if necessary to meet international obligations. But these so-called “reserve powers” are just that: a backstop, never so far used, and unlikely to be suitable for arrangements substantial enough to replace intrusive and complex EU laws. A settled, UK-wide legal framework for a policy area is likely to be better than continuously giving directions. Such a framework would be negotiated and subject to devolved consent: from a Cardiff or Edinburgh perspective, this is better than being directed all the time.

The UK government might just seek devolved consent for the necessary legislation bill by bill. But preferably, the Withdrawal bill should contain specific provision for replacing EU frameworks, with devolved consent, when needed to meet international obligations. Either way, the UK government must consult before entering into those deals.

There’s actually nothing new here. Leaving aside EU obligations, “executive devolution” is a well-established practice in the UK (an example would be the Scottish government’s powers over railways). It can already include the power for devolved governments to make regulations, and could be linked to defined powers over associated primary legislation as well.

Arguably there might be other areas of EU law in devolved areas which don’t relate to international obligations, but still nevertheless requiring some UK uniformity to deliver objectives which are reserved to the UK government, perhaps to maintain the single UK domestic market.

Westminster could try to keep the power to amend ‘’retained EU law’’ in case there are any but, unlike for international obligations, no powers of direction for such matters exist today, and no examples where it might be needed have been identified. Reserving EU retained law to Westminster to deal with this theoretical possibility is hard to justify, as any cases which do arise can surely be dealt with by agreement.

In many other devolved policy domains coordination between Westminster and the devolved governments will be desirable, but not essential to deliver on reserved UK responsibilities. In environmental protection, say, a strong case can be made for policy coordination. Here the UK government is acting as government of England, and while it might reasonably expect to take a lead, it should negotiate and agree any common framework. Those interested in decentralisation in England will be asking whether all these powers need come to central government there too. There is no need, and no constitutional case, to reserve EU retained law in these cases.

A land grab or a better bill?

The UK government argues reserving retained EU law is only a holding operation until the right allocation of powers can be made. But this feels like a rationalisation of a deeper motivation: it feels safer to cling onto power, especially if you have no clear idea what needs to be done, as with much of Brexit. It is however inconsistent with the principle of devolving responsibility absent a good reason not to.

Cardiff and Edinburgh could refuse consent to the withdrawal bill under the Sewel convention, but this would be an empty gesture as Sewel is not legally enforceable in the UK’s constitutional system. In any event, it would be unrealistic for the devolved governments to try to prevent Brexit just to secure an allocation of powers, particularly when the UK government can say devolved powers will in practice be at least as wide as today.

Instead they should argue for amendment of the bill to so that EU retained law is reserved to Westminster for a transitional period only, and to create a new legislative procedure for replacing European legal frameworks with UK ones if needed to meet international obligations. For the rest, any UK-wide rules on devolved matters should be by agreement only.

As it stands, the bill arrogates to the UK level all Brussels’ powers. While defensible in the short run – when no-one knows what leaving the EU means, or what transitional arrangements or new international obligations might be – this is not consistent with the UK’s territorial constitution. Instead the bill should acknowledge the powers central government will need for continuing international obligations, while leaving other devolved issues to be settled by mutual agreement between the UK’s different governments. That is what devolution means.

By Professor Jim Gallagher, member of Nuffield College Oxford, and a former senior civil servant. You can read the full paper here.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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