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A Continuing Source of Disagreement

Published: 22 March 2018
Author: Nicola McEwen
The devolved legislatures’ ‘continuity’ legislation prepares their statute books for Brexit in the event of an ongoing impasse with the UK Government over the so-called ‘power grab’ in the EU Withdrawal Bill. Professor Nicola McEwen suggests these ongoing discussions and debates provide insight into the challenges and opportunities likely to shape ongoing intergovernmental relationships. 
There has been considerable debate about the impact of the EU (Withdrawal) Bill on the constitutional authority of the devolved legislatures, especially as a result of the constraints imposed by the infamous Clause 11. The UK Government has now introduced an amendment in the House of Lords, requiring it to introduce regulations specifying the areas where this constraint on devolved powers would be applied. Analysis published recently by the UK Government suggests that restrictions would be mainly in the areas of agriculture, fisheries and the environment. 
This amendment has been rejected by the Scottish and Welsh Governments. While insisting that their first preference is to agree an amendment to the UK Bill to facilitate common UK frameworks without undermining devolution, their ‘continuity’ bills prepare their own statute books for Brexit without compromising devolved authority. There is some doubt about whether these bills fall within the legislative competence of the devolved institutions and the Supreme Court may in time be asked for its ruling. Whatever the outcome, these ongoing discussions and debates provide insight into the challenges and opportunities which are likely to shape intergovernmental relationships in the coming months and years. 
First, the current impasse in part reflects the absence of shared understanding of the extent and limits of devolution. The UK Government sees those powers within the competency of the EU as never having been meaningfully devolved while the Scottish and Welsh governments consider them part of the original devolution settlement. Thus, when the three governments agreed to ‘respect the devolution settlements’ in the principles that they agreed in October would underpin new common UK frameworks, they lacked a common understanding of what that entails. 
Second, much of the ongoing dispute is about process rather than outcome. All governments are agreed that there will be some areas where it makes sense to operate uniformly across the UK (or Great Britain, with separate arrangements for Northern Ireland). 
For the UK Government, common frameworks are necessary to preserve the UK’s internal market using more or less formal arrangements. According to UK Cabinet Office Minister David Lidington, who now oversees these negotiations, this would ensure free movement of goods and services within the UK “without any extra red tape or expense”. 
The devolved governments are as keen as the UK Government to avoid new internal barriers to trade and mobility. Their beef is about who gets to decide. The common position of the Scottish and Welsh Governments was succinctly expressed recently by Mark Drakeford, Cabinet Secretary for Finance and lead minister in the Welsh Government’s Brexit negotiations: 
“The things that are to be retained at the UK level should be things that are agreed… what we’re looking for is agreement… the principle of agreement, rather than the principle of imposition, is fundamental to us.” 
Of course, process is not unrelated to outcomes. Although all governments share the desire to avoid barriers to trade, they may have divergent views on how this would best be achieved. 
Third, the Brexit negotiations have revealed both the opportunities and the limitations afforded by the UK’s territorial constitution. The Withdrawal bill is Westminster legislation, and it is for the Westminster parliament to determine its final content and scope. But early in the process, the UK Government conceded that those clauses of the bill which most directly affect devolved competence would be subject to the Sewel convention, which commits it to seeking the consent of the devolved legislatures before the bill becomes law. 
This does not amount to a devolution veto, as the Supreme Court confirmed in its judgement in the Miller case, the Sewel convention is a matter of politics, not a matter of law. However, this concession gave the devolved governments an opportunity for influence in intergovernmental negotiations beyond their constitutional authority. These negotiations have shifted significantly the UK Government’s position, as evident in its amendment to Clause 11, even if not yet to the point where the devolved governments are willing to recommend consent for the bill. 
If consent is withheld, the normal procedure, according to the convention, would be for the offending clauses of the UK bill to be removed, freeing up space for devolved legislation. However, given the importance that the current UK Government attaches to retaining authority over the UK internal market, it seems unlikely that it would acquiesce on this occasion. On the other hand, there is discomfort in the UK parliament, especially in the House of Lords, at the prospect of passing the Withdrawal bill without the consent of the devolved legislatures. The Scottish and Welsh Continuity bills are an alternative to that legislative consent.  If implemented, they would add yet more constitutional complexity to the domestic Brexit process. But they are also intended to increase pressure on the UK Government towards further concessions, in the hope of reaching an agreed amendment to the Withdrawal Bill that would render devolved continuity legislation unnecessary.