The House of Lords Constitution Committee has published a comprehensive and critical report on the European Union (Withdrawal) Bill. The Bill’s second readingin the Lords has begun with the Government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories, but as yet these have not been tabled.
The Committee refrains from making detailed recommendations, largely because it expects that proposed amendments will emerge from negotiations between the UK Government and devolved administrations, and because the Government has itself undertaken to change the Bill.
However, the Committee’s overall position is that ‘the devolution settlements must not be undermined’, and insists that certain clauses are highly problematic and that amendments – in particular to clause 11 – are ‘imperative’.
The Committee first addresses clause 10. This accords powers to the devolved executives to deal with deficiencies arising from withdrawal; powers that are analogous to those given to UK ministers by clause 7. Elsewhere, however, the Bill gives a parallel corrective power to UK ministers ‘acting jointly with a devolved authority’. As initially drafted, there is considerable uncertainty as to when the devolved administrations may act alone or when cooperation with UK ministers will be required.
The Committee had previously criticised clause 10, and now notes that the Bill has been amended at report stage in the House of Commons: the devolved administrations no longer need to receive the ‘consent’ of UK ministers to use these powers, but in general may proceed after ‘consulting’ with the UK Government (subject to certain exceptional circumstances where consent may still be required).
Despite this clarification, though clause 10 and its effects remain unclear, introducing the need for constructive cooperation across the UK in the management of repatriated competences after exit. This makes the Committee’s later recommendations on intergovernmental relations (discussed below) all the more significant.
Clause 11 has drawn the most attention and the most criticism. It amends the main devolution statutes to the effect that the existing restriction on devolved competence concerning EU law is removed, and a new limitation introduced: an Act of a devolved legislature ‘cannot modify, or confer power by subordinate legislation to modify, retained EU law.’
This restriction does not apply ‘so far as the modification would, immediately before exit day, have been within the legislative competence’ of the legislature in question. The Bill also provides a mechanism whereby, if the UK Parliament and the relevant devolved legislature agree, areas of legislative competence can be released by way of Orders in Council to the devolved administrations, permitting them to modify retained EU law. In essence, this leaves the distribution of repatriated powers to the devolved territories in the hands of the UK Government.
The Government has countered with the argument that, far from representing a shift from a reserved to a conferred model of devolution, the power in clause 11 is intended to provide an appropriate mechanism to broaden the parameters of devolved competence in respect of retained EU law. The aim is to avoid the need to pass primary legislation in order to release new areas of competence.
While accepting the Government’s position, the Committee remains sceptical of the reasons given for the breadth of clause 11, observing that much depends upon assurances from the Government ‘that it hopes to identify quickly, in consultation with the devolved administrations, which powers can be transferred to the devolved institutions.’
The Committee warns that clause 11 has ‘significant potential consequences’ for the devolution settlements if the transfer of powers and competences from the EU level to the devolved administrations does not take place ‘swiftly and smoothly post-Brexit.’
It therefore urges the Government ‘to work closely with the devolved authorities to secure agreement on a revised clause 11.’
The Committee then analyses the Government’s aim of identifying areas where common frameworks are needed, and then releasing areas of competence where it is agreed that a common approach established by EU law does not need to be maintained and can be changed.
At a meeting of the Joint Ministerial Committee (JMC) last October, the Government and the devolved administrations agreed the principles which should govern the establishment of common frameworks, but the precise areas remain broad and largely undefined at this stage.
The Committee agrees that the conclusion of common frameworks is ‘essential’ to ensure that those areas which are currently governed by EU law return to the UK in a way that ‘both maintains a common UK approach where needed and respects the principles of the territorial constitution.’ Since establishing common frameworks would alleviate concerns over the possible implications of clause 11, the Committee urges the UK Government and the devolved administrations ‘to seek swift and tangible progress … in their negotiations.’
In light of the problems with clause 11 and the need to arrive at common frameworks, the Committee is clear that much depends upon the success of inter-governmental relations. The auspices are not good. The Committee had previously observed that: ‘The operation of the JMC structure is not well regarded—at least in the eyes of the devolved administrations’; now it makes reference to a joint letter from Scottish and Welsh ministers to the UK Government in June 2017 which identified ways to improve the operation of the JMC, including the scheduling of regular meetings, agreeing agendas further in advance and giving devolved administrations the opportunity to initiate policy proposals.
The Committee reiterates its view that cooperation among the UK’s governments is central to the success of the Bill, and in a recommendation that echoes its counsel in relation to common frameworks, it urges ‘the Government and the devolved administrations as a matter of urgency to work cooperatively to improve the operation of the JMC as the primary forum for these discussions.’
The report also addresses the impact of the Bill upon Northern Ireland. It is aware of the unique issues affecting this territory and that the implications of the UK’s departure from the EU for Northern Ireland, given their complexity and sensitivity, ‘require special and urgent consideration by the Government’.
The Committee therefore recommends that ‘the Government publish an assessment of the effect of the Bill and the UK’s withdrawal from the EU on the Belfast/Good Friday Agreement before the completion of the Bill’s consideration in the House of Lords.’
Finally, the Committee turns its attention to the Sewel Convention. In its interim report, the Committee was clear that the convention applies to the Bill and now it is equally clear as to the significance of the convention: the consequences of proceeding without legislative consent from the devolved legislatures ‘would be significant and potentially damaging, both to the UK’s withdrawal from the EU and to the union of the United Kingdom.’
The Committee takes the view that amending clause 11 is the key to securing legislative consent to the Bill, and thus states that ‘[it] is imperative that the Government brings forward amendments to clause 11 and works through the JMC to ensure an agreed approach to the return of competences from Brussels and pan-UK agreement on common frameworks.’
The Government is committed to amending clause 11 but progress has been slower than many hoped. The Committee’s report is not intended to transform the debate but rather to offer constructive support for changes to the Bill that will improve its fit within the evolving territorial constitution.
In offering a systematic assessment of the Bill’s deficiencies and in presenting in detail the evidence that it received from well-respected academics and other commentators, it will no doubt add to the pressure on the Government as the Lords begins its second reading debate.
The Committee has set out a road map for the repatriation of competences based upon intergovernmental cooperation, drawing together the need to amend clause 11, the consensual arrival at common frameworks, improvement in the established mechanisms of intergovernmental relations, and the prospects for legislative consent from the devolved legislatures. It remains to be seen if this map will be followed by the UK Government and devolved administrations.
By Stephen Tierney, Professor of Constitutional Theory at Edinburgh Law School and an ESRC Senior Research Fellow within the Centre for Constitutional Change. He also serves as Legal Adviser to the House of Lords Constitution Committee. This post, however, is written purely in a personal capacity.