The EU Withdrawal Bill has exacerbated the already serious tensions between the UK and the devolved Governments over Brexit and creates an urgent need to reset intergovernmental relations.
The EU Withdrawal Bill will take the UK out of the European Union (EU) while providing that all European law be imported into domestic law to avoid a regulatory black hole after Brexit.
The bill creates wide-ranging powers for ministers to amend this huge body of ‘retained EU law’ to ensure it will be ‘operable’ outside the EU and to reflect the terms of the Withdrawal Agreement.
In Edinburgh and Cardiff, there are serious concerns about the impact of the bill on devolution and on the balance of power within the UK. The Scottish and Welsh Governments have announced that they oppose granting the bill devolved consent, which Whitehall recognises should be sought under the Sewel Convention.
The central point of contention is Clause 11. At present, the devolved parliaments cannot pass legislation that is incompatible with EU law. Clause 11 replaces this constraint with a new provision preventing them modifying the new category of ‘retained EU law’.
This means all powers currently exercised at EU level will initially flow back to Westminster. There is further provision for some of these powers to be ‘released’ to the devolved level, but at the discretion of UK ministers.
The Whitehall view is that new frameworks will be required to coordinate policy currently held constant across the UK by EU law in areas such as environmental regulation, agricultural policy, state aid and aspects of justice and transport.
These frameworks might be needed to prevent new barriers to economic activity within the UK, to ensure the UK can strike comprehensive trade deals, to comply with international obligations or to manage common resources such as fisheries.
A long list of policy domains where EU and devolved powers intersect has been published. For Scotland there are 111 areas mentioned. But the extent to which new frameworks will be needed is unclear.
This is partly because the terms of exiting the EU remain unknown and if the UK remains within some EU frameworks, the devolution question will be (largely) moot. But it is also because the government failed to think through these complex questions before triggering Article 50 and is now in a race against the clock.
The Scottish and Welsh Governments agree that some joint frameworks will be required. But they disagree with the UK government on a fundamental point of principle. The Edinburgh-Cardiff ‘Axis of Devol’ is adamant that all powers in areas such as the environment should be devolved in full with frameworks then negotiated between the four governments.
To be precise, they argue that these areas are already devolved albeit currently subject to the requirement to abide by EU law. Their proposed amendment to the EU Withdrawal Bill would remove this requirement and put nothing in its place. They also have a practical concern that the bill would muddy the boundary between devolved and reserved (non-devolved) powers, creating confusion and raising the potential of legal disputes.
The underlying problem is a profound absence of trust. The devolved governments are being asked to consent to the bill on the basis of ministerial guarantees that significant further devolution will follow. And the devolved amendment would require Whitehall to trust that Edinburgh and Cardiff will play ball when it comes to creating common frameworks if full control were devolved.
If agreement is not reached then Westminster may push the bill through regardless. That might trigger a legal challenge, albeit one the Government would expect to win. But it would certainly damage relations further, making it harder still for the Governments to work together in the new constitutional context of a post-Brexit Britain.
How can the impasse be resolved? Like the lost tourist asking the surly local for directions, the accurate but unhelpful answer is that ‘I wouldn’t start from here, if I were you’. Trust and joint working arrangements cannot be built overnight, and it is apparent that the intergovernmental mechanisms established in autumn 2016 have not lived up to the stated purpose of developing a UK-wide approach to Brexit.
The key ministerial body is the Joint Ministerial Committee (EU Negotiations) - also known as JMC (EN) - which is a forum that brings together ministers from the UK and devolved governments to discuss the UK Brexit strategy. But it has not met since February.
A meeting of the JMC (EN) is reportedly pencilled in for October. This is necessary but insufficient. There must be a commitment to much more regular meetings, with greater transparency and information sharing in order to give the devolved Governments the opportunity to influence the UK position in negotiations with the EU.
Alongside this, intensive joint working is required to establish where and how common frameworks should be established. The first move should be to agree clear principles that apply, perhaps with a presumption to devolve unless there is a strong, evidence-based reason to retain the powers at UK level.
Other concessions may be needed too, for instance to protect the Scotland and Wales Acts from further amendment using the ministerial powers created by the EU Withdrawal Bill.
The Institute for Government has long called for a new approach to intergovernmental relations, particularly with regard to Brexit. The deadlock over the EU Withdrawal Bill makes this more urgent than ever.