The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the Government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.
Largely because of the Government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK Government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision 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. Schedule 2, paragraph 1(2) however gives a parallel corrective power to UK ministers ‘acting jointly with a devolved authority’. As initially drafted, the clause left a considerable area of uncertainty as to when the devolved administrations may act alone or when cooperation with UK ministers will be required. The Committee had been critical of clause 10 in its interim report on the Bill. It notes however that the Bill has been amended at report stage in the House of Commons, to the effect that the devolved administrations no longer need to receive the ‘consent’ of UK ministers to make regulations using these powers, but in general may proceed after ‘consulting’ with the UK Government, subject to certain exceptional circumstances set out in Schedule 2 where consent may still be required. Despite this clarification in the Bill, 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 of course 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 Committee heard evidence to the effect that clause 11 represents a retrenchment on the devolved settlements, and even arguments that it constitutes a move from a reserved towards a conferred powers model of devolution; contentions which the UK Government strongly refutes.
The Government has countered with the argument that 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, avoiding the need to pass primary legislation in order to release new areas of competence. The Committee fully airs the Government’s position, but remains sceptical of the reasons given for the breadth of clause 11. It observes 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 policy aim of identifying areas where common frameworks are needed and then to release 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 (EU Negotiations) in 10 October 2017, 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.’ One advantage of arriving at common frameworks it that it would alleviate concerns over the possible implications of clause 11. The Committee therefore urges the UK Government and the devolved administrations ‘to seek swift and tangible progress towards such frameworks 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 at first glance are not good. In an earlier report, the Committee observed that: "The operation of the Joint Ministerial Committee (JMC) structure is not well regarded—at least in the eyes of the devolved administrations. The plenary JMC meeting of heads of government is seen as ineffective while its Domestic subcommittee does not appear to serve a useful purpose.’ In the report published today the Committee also 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, the Committee also urges ‘the Government and the devolved administrations as a matter of urgency to work cooperatively to improve the operation of the Joint Ministerial Committee 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 European Union 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 in today’s report it is equally clear as to the significance of the convention: ‘the constitutional consequences of proceeding with the Bill without legislative consent from the devolved legislatures ‘would be significant and potentially damaging, both to the UK's withdrawal from the European Union 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. To this end: ‘It is imperative that the Government brings forward amendments to clause 11 and works through the Joint Ministerial Committee 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. By drawing a clear connection between reform to 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, the Committee sets out a road map for the repatriation of competences based upon consensus and intergovernmental due process. It remains to be seen if this map will be followed by the UK Government and devolved administrations.
Stephen Tierney is Professor of Constitutional Theory at Edinburgh Law School and an ESRC Senior Research Fellow within the Centre for Constitutional Change. He is currently funded by an ESRC Brexit Priority Grant, addressing Brexit and the repatriation of competences.
He also serves as Legal Adviser to the House of Lords Constitution Committee. This post, however, is written purely in a personal capacity.