06 March 2018

With the Welsh and Scottish governments taking steps to pre-empt the EU Withdrawal Bill through their own continuity bills, the UK has moved a step closer to constitutional crisis, argues Jack Kellam.

The Scottish and Welsh governments took the first steps towards passing their own continuity bills last Tuesday, escalating their conflict with the UK Government over the EU Withdrawal Bill – and edging intergovernmental relations closer to a constitutional crisis.

After turning down the UK Government’s proposed amendment to Clause 11 of the EU Withdrawal Bill, at the Joint Ministerial Committee (European Negotiations) meeting on the 22 February, the devolved governments have resorted to their “fallback, fail-safe option”: continuity legislation at the devolved level.

The continuity bills retain the Charter of Fundamental Rights, and allow devolved ministers to follow EU law after Brexit

The Law Derived from the European Union (Wales) Bill and the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill both perform very similar functions to the EU Withdrawal Bill in Westminster. The bills transpose existing EU legislation into the domestic statute book, and give ministers powers to amend this new body of ‘retained EU law’, thereby avoiding a regulatory black hole after exit day.

The devolved governments, however, object to the Westminster bill’s transfer of powers to UK ministers in areas where existing EU law intersects with devolved competences, such as agriculture and the environment. They want to reverse this ‘power grab’, and ensure that powers in these areas of intersection – 111 of them in Scotland, 64 in Wales – are returned directly to the devolved level.

The continuity bills therefore provide for the retention of EU law within Scottish and Welsh law, and give devolved ministers powers to ‘correct’ this body of legislation to make it operable within its new context. In essence, the bills plant devolved flags on these policy areas before Westminster can claim the territory for itself through the EU Withdrawal Bill.

The devolved legislation further differs from Westminster’s in retaining a role for the Charter of Fundamental Rights of the EU in Scottish and Welsh devolved law after Brexit. In contrast, the UK Government had dropped this role through Section 5 of the EU Withdrawal Bill.

In addition, the continuity bills will give devolved ministers the power to make subordinate legislation reflecting post-Brexit EU law. This will make it easier for Wales and Scotland to maintain regulatory alignment with the EU in devolved areas – as and when their ministers find it appropriate.

Supreme Court challenge might await the continuity bills

There remains some distance, however, before these provisions might take effect. Back in December, I set out the challenges that continuity bills will face if they make it into the devolved legislatures.

The first hurdle – getting the bills considered as ‘emergency’ legislation under devolved Standing Orders – has almost been cleared in both nations. Last Thursday, the Scottish Parliament voted to give the bill a significantly expedited timetable, and this evening the Welsh Assembly is also expected to back a motion to fast-track its version of the legislation.

If passed, the devolved legislatures will both have their final votes on the bills on the 21 March.

However, the second – attaining an affirmative statement of competence from each legislature’s Presiding Officer – has proved more difficult.

In Scotland, Presiding Officer Ken Macintosh decided that the Holyrood Government’s continuity bill stands outside its competence, by granting Scottish ministers powers to act contrary to EU law, and thereby assuming “that the Parliament can make provision now for the exercise of powers which it is possible the Parliament will acquire in the future”.

Nevertheless, the Scottish Government has taken the unprecedented step of moving ahead, following advice from its own Lord Advocate, who argues that the bill is not contrary to EU law – and therefore is within competence – since “the terms of the bill ensure that its provisions will not come into effect… before the United Kingdom leaves the European Union”.

Likewise, Elin Jones, the Llywydd, Welsh Presiding Officer, has given the Welsh Government’s continuity bill a positive statement of competence, on the grounds that it contains similar safeguarding provisions.

Macintosh’s decision does not therefore block the passage of the bill, but it does indicate the next potential hurdle: a legal challenge by the UK Government. Under Section 33 of the Scotland Act 1998, and Section 112 of the Government of Wales Act 2006, the UK Attorney General may refer a bill to the Supreme Court for a decision on legislative competence within four weeks of it passing through the devolved legislatures.

The Welsh Government has been taken to the Supreme Court on several occasions by the UK Government, but a joint referral would mark the first time an Act of the Scottish Parliament was challenged by the UK Attorney General.

The UK constitution is set to move into uncharted waters

With the continuity bills, the UK’s constitution enters uncharted waters. The most straightforward resolution remains agreement on amendments to Clause 11 of the EU Withdrawal Bill, accompanied by consent motions in the devolved parliaments. The two continuity bills could then be withdrawn.

Otherwise, constitutionally messy scenarios arise. A Supreme Court challenge cannot resolve the fundamental problem facing the UK Government. Even if it managed to have the continuity bills struck down by the court, the UK Government would still face the prospect of breaking the Sewel Convention by passing the EU Withdrawal Bill without devolved consent.

On the other hand, if the Supreme Court upheld the bills, then the UK Government might have to overrule democratically-mandated devolved legislation to get its own EU Withdrawal Bill through. Either of these scenarios would seriously damage the constitutional underpinnings of devolution in the UK.