Among the various issues addressed by the Government’s European Union (Withdrawal) Bill (which we have discussed in our earlier blog posts), one that has generated considerable publicity is how Brexit will impact on devolved powers.
The Bill’s starting point is that post-Brexit, the devolved administrations cannot legislate to amend retained EU-derived laws, unless the laws in question would have been within the competence of the devolved administration prior to the UK’s departure from the EU. The Bill accordingly proposes a number of consequential amendments to existing devolution legislation to reflect this position.
In addition, Schedule 2 to the Bill gives powers to devolved authorities (either alone or jointly with Ministers) to make regulations to deal with any failure of retained EU law to operate effectively or any other deficiency, although such powers are subject to restrictions ensuring devolved authorities cannot legislate beyond existing limits on devolved powers.
Immediately following publication of the Bill, the leaders of the Scottish and Welsh devolved administrations issued a joint statement critical that the Bill in its present form does not return powers from the EU to the devolved administrations.
The Government has suggested that it would seek the devolved assemblies’ endorsement of the Bill by asking them to pass what is known as a legislative consent motion, but initial indications from both the Scottish Parliament and the Welsh Assembly were that they would vote against a legislative consent motion unless changes were made to the Bill.
Legally, although the absence of a legislative consent motion might not prevent passage of the Bill through the UK Parliament, the lack of such consent could create significant political difficulties. The Sewel Convention provides that although parliamentary sovereignty allows the UK Government to repeal or amend legislation, changes to legislation affecting devolved powers are normally subject to the passing of a legislative consent motion by the parliament concerned. In other words, although it has power to do so, the UK Parliament will not normally legislate on devolved matters without the consent of the devolved authority. It should be noted that in the case of Scotland, the convention was given statutory effect by the Scotland Act 2016. This amended the Scotland Act by adding, as a new section 28(8) of the Scotland Act 1998 “… it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” Indeed, in R (on the application of Miller) v Secretary of State for Exiting the EU, the Supreme Court was unanimous in holding that the UK Government was not legally required to consult the devolved administrations as a pre-condition to triggering Article 50. While the Court noted the importance of the Sewel Convention, it did not feel that it could rule on it.
As such, while the UK Government could attempt to proceed without the consent of the devolved assemblies, such a course could be hampered by political realities. In addition, the practical benefits of retaining consistency across the UK’s own single market provides further incentive for co-operation. A report prepared by the House of Lords European Union Committee has urged the UK Government to work closely with the devolved administrations over Brexit, noting that the supremacy of EU law has been the 'glue’ which has helped hold together the UK’s own internal single market and that consequently any reform of the devolution settlements should be underpinned by a clear and agreed framework of guiding principles.