Introductory

As the ‘Great Repeal Bill’ of rhetoric becomes the European Union (Withdrawal) Bill of reality, the scale of the task facing Parliament – predicted by academic and practitioner commentators – is made evident. Mark Elliott and Tobias Lock have each produced commendably thorough introductions to the Bill, and there are a number of themes in the Bill which have already attracted further critical commentary. For example, The Guardian has highlighted likely political controversy around the exclusion of the Charter of Fundamental Rights from the retained EU law, although this was foreshadowed in Chapter 2 of the White Paper which preceded the Bill (Cm9446). Likewise, the scope and operation of the Henry VIII clauses is likely to attract further comment and debate.  This post focuses on another important aspect of the Bill, namely its interaction with the UK devolution arrangements.

Legislative Consent

Although the White Paper was reticent about this, it is self-evident that the EU Withdrawal Bill, as well as some of the Bills (as yet unpublished) which will make provision for certain economic sectors, will require legislative consent from the devolved legislatures. In the first place, it might be thought that there is a political-constitutional imperative to do so, given the commitment of the UK Government in the White Paper to “work closely with the devolved administrations to deliver an approach the works for the whole and each part of the UK” (para 4.4). Secondly, there is a legal-constitutional imperative, since the Bill explicitly aims to alter the institutional structures in each of the devolved nations. It does so in a number of ways: by (prospectively) removing existing provisions constraining legislative competency by reference to EU law (clause 11 & Schedule 3), and by granting Henry VIII powers to the devolved administrations (clause 10 & Schedule 2). That reality is recognised in the Explanatory Notes to the Bill (paras 68 & 69).

At present, there are no provisions dealing with the re-allocation within the UK of legislative powers which will be repatriated from EU competences. Since some areas of EU competence are devolved or partly devolved (e.g. agriculture, or the environment), the future balance of legislative and administrative competence in these areas between central and devolved administration will alter the scope of currently devolved matters. This is a matter of political moment in the devolved nations. In a joint statement, the First Ministers of Scotland and Wales, described the Bill as:

 “… a naked power-grab, an attack on the founding principles of devolution and could destabilise our economies.”

As a result, the statement continued, the First Ministers could not recommend that legislative consent be given by the Scottish Parliament and Welsh Assembly.

In the first instance, this is a matter of contention on the political plane. In both Scotland and Wales, the current arithmetic of the chamber is such that it is possible that the devolved administration could carry a vote to refuse legislative consent.

Of course, the UK Parliament retains power in each of the devolution statutes to legislate in relation to devolved matters; however, the Sewel convention requires that it should normally do so only with the consent of the relevant devolved legislature. That now finds statutory expression in section 2 of the Scotland Act 2016 (which adds a new subsection 28(8) to the Scotland Act 1998), and section 2 of the Wales Act 2017 (adding subsection 107(6) to the Government of Wales Act 2006). I have previously written about the Sewel convention on this blog, arguing that it should be understood as having more than symbolic effect. In the Miller case, of course, the UK Supreme Court decided that even in its statutory form, the Sewel convention was a political convention, apparently without legal substance (see Lord Neuberger, paras 148, 150-1).

In retrospect, it is perhaps unfortunate that the Sewel convention issue appears to have been approached as secondary in Miller, because it is plain that the point is very much live at this stage of the withdrawal process. If, as the Supreme Court has held, the issue of the convention’s operation is not a legal one, it is not evident that a clear political guide has yet emerged for management of legislative consent and its absence in circumstances of political controversy and direct opposition from the consulted devolved legislature. It is difficult to disagree with Mark Elliott’s observation that it would be a gross understatement to describe pressing on with legislation in the absence of consent in this context as ‘political folly’.

Devolved Henry VIII

Henry VIII never visited Scotland, though he interested himself in its affairs as much as those of Wales and Ireland, so it is particularly intriguing to consider the Henry VIII mechanisms delegated to the devolved administrations.

Of course a central aim of the Bill is provision of a continued juridical basis for the operation of extant EU law across the UK, not least to ensure that large holes do not appear in the statute book on ‘exit day’ (cf. White Paper, para 2.4), and clauses 2-6 make provision about this. It is also foreseeable that some reshaping will be needed for reasons of the continued smooth operation of existing provisions. Henry VIII powers are inevitable, and are conferred extensively by clauses 7-9, which empower Ministers of the Crown to deal with ‘deficiencies’ in retained EU law and for connected matters. Jack Simson Caird has examined these in more detail on this blog, and Mark Elliott has identified a number of areas of constitutional concern.

Further, clause 10 and Schedule 2 confer powers on devolved administrations for broadly the same purposes. Unsurprisingly, these are subject to the existing limitations on devolved competence, and in addition exclude from these powers certain classes of EU legislation (see Schedule 2, paras 3, 4, 15, 23 & 24). It remains to be seen whether that boundary has been drawn in the most appropriate place, though there is a saving provision allowing for joint legislation by a devolved administration and a UK minister in paragraph 1(2) of Schedule 2.

In addition to important rules about legislative scrutiny, Schedule 7 also contains more general provisions about the exercise of powers. Unhelpfully these are not uniform across the devolved administrations, even allowing for the structural differences among the nations. In particular, paragraph 12(2) is positively opaque about Scotland, which is important since paragraph 12 describes the mode of making regulations by each devolved administration. This is all the more puzzling since all other combinations of regulation making (Wales-only, Northern Ireland-only, and jointly with the UK) are quite clearly elaborated in paragraph 12(1).

Repatriated powers

Mention has already been made of the political response from Scotland and Wales to the absence of provision about the reallocation of repatriated powers within the UK. The Department for Exiting the EU asserts that its ‘guiding principle’ in this regard will be:

“that no new barriers to living and doing business within our own union are created when we leave the EU. We will therefore need to examine these powers carefully to determine the level best placed to take decisions on these issues.”

In its Factsheet No. 5, the Department’s policy is explained this way:

• “The Bill will replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision making powers immediately after exit. This means that any decisions that the devolved authorities can take before exit, they can continue to take after exit.
• This will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with devolved authorities on where lasting common frameworks are or are not needed.
• Where it is determined that a common approach is not required, the Bill provides a power to lift the limit on devolved competence in that area.”

Clause 11 of the Bill is the operative element, and contains new limitations on the legislative competence of the devolved legislatures, namely that they cannot modify retained EU law unless it is already within competence. Power to extend competence by Order in Council is given to the Crown to operate in a similar manner to the existing temporary extensions; for example, in section 30 of the Scotland Act 1998.

From the perspective of the devolved administration, this is likely to be both politically controversial and technically challenging for a number of reasons. First, devolved competence is, for these purposes at least, subject to alteration other than by primary legislation. Secondly, in contrast to the clarity of the policy statement, the Bill contains no clear mechanism for determining whether a common framework is required in a given area, nor a timetable. A fully worked-out scheme might not be expected in the body of the Bill, but in light of the declared policy, a more extensive substructure might be thought politically as well as legally helpful.

Conclusions

While the immediate political focus may have fallen on clause 1 and the repeal of the European Communities Act 1972, legal-constitutional commentary has understandably been more wide-ranging. It is suggested that there are a number of unresolved problems for the devolution settlement buried within the detail of the Bill. Some of these are primarily political, others more legal in character, and all having a bearing on the post-departure constitutional balance within the UK.

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher at Edinburgh University Law School.

Suggested citation: K. Campbell, ‘Henry VIII Comes to Scotland, Wales and Northern Ireland, and Other Devolution Questions in the EU (Withdrawal) Bill’, U.K. Const. L. Blog (20th Jul 2017) (available at https://ukconstitutionallaw.org/))