06 December 2017

The Welsh and Scottish Governments are considering the introduction of 'continuity bills' to pre-empt a Westminster power grab. But even if this legislation passes it could still face a challenge in the courts, argues Jack Kellam.

When the UK repeals the 1972 European Communities Act, it will cease to be bound by EU law. To avoid a regulatory black hole, the UK Government has set out a strategy to incorporate this body of legislation into British law through the EU Withdrawal Bill, currently being debated at committee stage in the House of Commons.

The Scottish and Welsh governments have consistently opposed the terms of the bill. They agree with the need to retain EU legislation, but argue that the bill represents a “power grab” that transfers all powers returning from the EU back to Westminster, even when they relate to devolved policy areas such as the environment.

The two devolved governments therefore published proposed amendments to the bill in September that would rewrite Clause 11 so that any EU powers in devolved areas return to Stormont, Holyrood and Cardiff Bay instead.

Planting Welsh and Scottish flags on devolved turf

A significant opportunity to secure these concessions passed on Monday when MPs rejected all the proposed amendments to Clause 11.

Wales’ First Minister, Carwyn Jones, confirmed in late November that their amendments represent red lines for the Welsh Government. If Westminster does not concede, then he will recommend that the Assembly does not provide legislative consent for the bill.

The Welsh Government may now introduce a ‘continuity bill’ to the Assembly, which officials have already drafted, should changes to the Westminster bill not be secured.

The Scottish Government has adopted a similarly resolute stance stating that it was “considering how Scottish legislation…could provide the necessary continuity of law in Scotland” and Michael Russell, the Scottish Minister for UK Negotiations on Scotland’s Place in Europe, confirmed last week that this remains an option.

To safeguard each government’s power over the areas where EU law and devolved competence intersect, the idea of a continuity bill has been described as “a legal insurance policy” taken out in advance of the passage of the EU Withdrawal Bill. It would seek to retain EU legislation in devolved policy areas.

Much like the EU Withdrawal Bill, a Scottish or Welsh continuity bill would presumably identify categories of EU laws it would incorporate into devolved law, and create mechanisms for devolved ministers to amend and correct them to ensure they are operable once the UK leaves the EU.

Whatever the legal effect, the continuity bill can be interpreted as a tactical move to plant a Welsh or Scottish flag in these policy areas before Westminster claims the territory for itself.

A Welsh or Scottish EU continuity bill would face a number of problems

Should either devolved government decide to move ahead with a continuity bill, it would have to navigate a number of difficulties.

First, if the UK Parliament passes the EU Withdrawal Bill in its current form, the devolved legislatures would not then be able to pursue their own, as Westminster legislation will constrain their competence to modify ‘retained EU law’. In Wales, we are told, the bill might also need to pass before April 2018 when the new Wales Act comes into force which more explicitly reserves to Westminster the issue of UK-EU relations.

To meet these short timescales, the standing orders of both devolved parliaments allow for the passage of ‘emergency’ legislation, which could allow for the acceleration of a continuity bill through the devolved legislative process. However, these have rarely been used, and in Scotland, the minority Government could find it difficult to secure the support needed to use this procedure.

Secondly, any continuity bill would face questions about its legality. Under the existing devolution legislation, relations with the EU and its institutions are reserved for the UK Government. Even if the continuity bills make it through the devolved legislatures, the UK Government could take the devolved governments to the Supreme Court.

Carwyn Jones believes the Welsh Government would only be legislating with ‘powers that are devolved in any event’, and so long as the bill specifically pertains to EU law in devolved areas, then the Welsh Government would be acting within its competence. The Scottish Government would likely take a similar view. But if the UK Supreme Court disagrees with this interpretation, any continuity bills could be struck down.

Thirdly, under the Standing Orders of the devolved legislatures, any new bill must be accompanied by a statement from the Presiding Officer indicating if it contains provisions ‘not within the legislative competence’ of the Assembly or Parliament. Should the Presiding Officer rule that the legislation was beyond competence, this would not prevent a continuity bill from being introduced to the devolved legislatures, but it would make it difficult for Assembly Members or Members of the Scottish Parliament to back.

Westminster can still overturn a Welsh or Scottish EU continuity bill

Even if a continuity bill was deemed legal by the court, the UK Government would have a trump card to play. Since the UK Parliament is sovereign, it can supersede legislation passed by the devolved legislatures.

Supporters of a continuity bill know this and their rationale for the legislation is to force the UK Government into a choice: either allow devolved control over retained EU law in devolved policy areas, or actively overturn devolved legislation without consent.