EU Withdrawal Bill: Clause 11 and the devolution deadlock

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Why are the UK and devolved governments in dispute over the EU Withdrawal Bill?

The Scottish and Welsh Governments have opposed the EU Withdrawal Bill since its publication in July 2017. The central dispute concerns the repatriation of powers in areas that are devolved in theory but bound in practice by EU law – which takes precedence.

Clause 11 of the Government’s EU Withdrawal Bill provides that the power to amend “retained EU law” in these areas would transfer from Brussels to Westminster, rather than to Edinburgh, Cardiff and Belfast. This would enable the UK Parliament to create new UK-wide legal frameworks to replace EU legislation.

The devolved governments rejected this idea as a Westminster “power grab”. They propose that all powers in the intersection between EU and devolved competence should be devolved in full. “Common frameworks”, they argue, could then be agreed by consensus, not least to avoid new regulatory barriers to businesses operating across the UK market.

In the absence of Scottish and Welsh backing for the EU Withdrawal Bill, the UK Government runs the risk of breaching the Sewel Convention, which states that Westminster does “not normally legislate with regard to devolved matters without the consent” of the devolved parliaments.

What is the UK Government now proposing?

On 12 March 2018, the UK Government published a set of amendments to the EU Withdrawal Bill, including a new compromise on Clause 11. These were debated in the House of Lords on the 21 March. However, the UK Government opted to withdraw them for further consideration rather than putting them to a vote.

The proposed amendment to Clause 11 reverses the bill’s original logic. It provides that control of areas where EU and devolved law overlap will pass by default to the devolved institutions.

However, the amendment also allows UK ministers to make regulations freezing the devolved governments’ ability to change the law in specified areas. In such areas, Westminster would retain control until agreement is reached about what to put in place of EU law.

Ministers would also have to report to the UK Parliament every three months on where and why they had made such regulations, and on the progress made towards agreement on new UK-wide frameworks, after which the freeze on devolved powers would be lifted.

Despite the proposed changes to the bill, the Scottish and Welsh Governments immediately declared that they could still not give their consent.

What are the remaining sticking points?

First, the devolved governments want any new regulations restricting their powers to be conditional upon their “consent”. They note that the new amendment requires only that UK ministers “consult” with their devolved counterparts – which means the UK Government could impose restrictions on devolved competence unilaterally, subject only to the requirement to explain their decision every three months.

Second, although the amendments say new restrictions on devolved power will be temporary, there are no “sunset” provisions to ensure their expiry. The UK Government could, in principle, freeze devolved competence for as long as it deems necessary.

Third, although the UK Government has indicated that it intends to use the new Clause 11 powers sparingly – and only where necessary “to avoid the risk of potentially damaging divergence” – these powers could, at least in principle, be used to constrain the devolved bodies in all areas where EU law applies.

The one safeguard is that the devolved bodies will be able to pass any legislation that “would, immediately before exit day, have been within legislative competence”. Westminster, therefore, will be able to constrain devolution only to the extent that EU law constrains it at present.

Finally, the Scottish Government is worried that policy areas covered by the new regulations would be treated by UK ministers as “reserved” rather than devolved, despite the temporary nature of the regulations. In that case the Sewel Convention would not apply – and Westminster might create new fisheries or agriculture regimes without seeking devolved consent.

Speaking in the House of Lords on 21 March 2018, UK Government Minister Lord Keen addressed these objections. He stressed that any decisions regarding the use of regulatory powers under Clause 11 will be "a collaborative process", directly involving the devolved governments. He also said that primary legislation implementing new frameworks will "be carried on in accordance with… the Sewel Convention."

In which policy areas might the UK Government want to constrain devolution?

Alongside its new amendments, the UK Government published an updated list of the 153 areas where it believes EU and devolved law currently intersect, and where new UK-wide frameworks might therefore be required after Brexit.

Of this list, 63 apply to Wales, 107 to Scotland, and 151 to Northern Ireland, reflecting the variation between the three devolution settlements (see charts below, categorised by government department – see the list of departmental abbreviations).

The list is further divided into three groups.

First, there are 49 areas where it believes “no further action” is required; these can therefore be devolved in full.

The largest number of these (23) comprise aspects of transport policy, 17 of which are only devolved to Northern Ireland. Several areas of environmental and energy policy – including water quality, land use and carbon capture – will be devolved in full to all three nations.

Second, the UK Government has identified 82 areas where it believes “non-legislative common frameworks” are required. In other words, the UK and devolved governments will negotiate agreements to cooperate, but these will not be enforced in law.

There are 42 such areas relating to justice and policing, including cross-border judicial cooperation, police data-sharing arrangements, and minimum-standards legislation in areas such as cybercrime and human trafficking. These matters are all devolved to Northern Ireland, and most to Scotland – but none to Wales.

Non-legislative common frameworks are also expected in areas of health and environmental policy, for instance organ transplantation, air quality and the disposal of radioactive waste.

Third, there are 24 areas where the UK Government thinks binding “legislative common frameworks” may be needed, for instance to preserve the functioning of the UK internal market or to ensure the Government can implement trade and other international agreements.

Of this list, 17 areas fall within the responsibility of the Department for the Environment, Food and Rural Affairs (Defra), and include major policy areas such as agricultural support, animal welfare and fisheries management and support.

Fourth, there are 12 additional areas that the UK Government argues are already reserved to Westminster, but on which discussions with the devolved governments are ongoing. This list includes important areas such as state aid, “food geographical indications”, and migrant access to benefits.

Update date: 
Tuesday, March 20, 2018