53.One of the four main functions performed by the Bill is to maintain the current scope of devolved decision-making powers in areas currently governed by EU law. The Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 all set out that devolved competence must be exercised compatibly with EU law. The effect of this is that, in a devolved policy area such as agriculture, devolved administrations currently only have the power to legislate and determine policies within the framework provided by the EU.
54.Under the provisions of Clause 11, devolved legislatures and executives will remain bound by retained EU law unless or until the UK Parliament agrees to them gaining power to modify it. The Government states that the Bill maintains “the current parameters of devolved competence as regards retained EU law.” In its White Paper on the then Great Repeal Bill the Government argued that common frameworks would be necessary in some policy areas in order to protect the UK market:
our guiding principle will be to ensure that – as we leave the EU – no new barriers to living and doing business within our own Union are created. We will maintain the necessary common standards and frameworks for our own domestic market, empowering the UK as an open, trading nation to strike the best trade deals around the world and protecting our common resources.
55.The Government has said that the provisions in Clause 11 represent a transitional arrangement until policy frameworks have been agreed. The devolved governments of Scotland and Wales have objected to the UK Government’s approach, and have said that they will refuse to pass Legislative Consent Motions. Following the publication of the Bill, the First Minister of Scotland, Nicola Sturgeon, and the First Minister of Wales, Carwyn Jones, issued a statement in which they referred to the Bill as “a naked power-grab, an attack on the founding principles of devolution.” They recognised the need for common frameworks to replace EU laws in some areas but questioned the UK Government’s approach:
the way to achieve these aims is through negotiation and agreement, not imposition. It must be done in a way which respects the hard-won devolution settlements. The European Union (Withdrawal) Bill does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK Government and Parliament, and imposes new restrictions on the Scottish Parliament and National Assembly for Wales. On that basis, the Scottish and Welsh Governments cannot recommend that legislative consent is given to the Bill as it currently stands.
56.Witnesses suggested that the proposed arrangements did not respect the existing basis of devolved powers. Laura Dunlop QC, Convenor, Faculty of Advocates Law Reform Committee, pointed out that the basis on which the Scottish Parliament was established in 1999 was that everything that was not specifically reserved was devolved but that this fundamental principle was not being maintained. In terms of Wales, Dr Jo Hunt, School of Law and Politics, Cardiff University, said that:
In Wales, next year, when the [Wales] Act comes into force, we are moving to a reserved powers model, so we have a coming into line across the UK. However, this piece of legislation [the Bill] essentially moves us back to a conferred powers model: these things are taken back to the centre and then handed down piecemeal.
It should be noted that the devolved administration of Northern Ireland has been suspended since January 2017.
57.Although the UK Parliament retains power in each of the devolution statutes to legislate in relation to devolved matters, the Sewel Convention requires that it should normally do so only with the consent of the relevant devolved legislature. The Sewel Convention was given statutory form in the Scotland Act 2016 and the Wales Act 2017, but the Supreme Court held in the Miller case on 24 January 2017 that the Sewel Convention did not give rise to a legally enforceable obligation and that the devolved legislatures did not have a veto on the UK’s decision to withdraw from the UK and on the process of triggering Article 50. The Supreme Court noted that the UK Parliament did not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislatures, but stated that the policing of the scope and operation of the Sewel Convention was not within the constitutional remit of the courts. The judgment noted that it was the expectation of the devolved administrations that the UK Government will need to secure legislative consent from them before implementing the legal process of withdrawal. The judgment also emphasised that the Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures.
58.In April 2017, Plaid Cymru AMs called for a Continuation Bill to be passed to protect EU laws in Wales. When asked whether continuation legislation of this sort could be used by the devolved legislatures to produce their own legislation on devolved matters formerly the province of EU law, Laura Dunlop QC said that it was technically possible, and would be one resort if there were “a near emergency situation at that point and some continuity has to be maintained.”
59.Dr Hunt said that if the UK Government went ahead with the Bill without a Legislative Consent Motion, it would be “a continuation of the quite confrontational approach” to the devolved administrations. She said that the fact that continuity legislation was even being considered was “unsatisfactory for the state of our constitution” and added that:
We have been talking about trust; if that is where this ends up, it is a particularly sorry reflection on the state of the UK constitution.
60.Robin Walker confirmed that the Government was seeking legislative consent, and said that “we recognise that this legislation touches on areas of devolved power, and we want to be very clear that we are seeking to work with the devolved administrations on this.”
61.Witnesses agreed that common frameworks would be required for some policy areas. Dr Kamala Dawar, UK Trade Policy Observatory, said that there was a real concern for “fragmentation of the economy with devolution” and “that international competitiveness could be compromised by a non-harmonised UK position.”
62.The Faculty of Advocates in Scotland pointed out that 111 areas had been listed as potentially requiring a common policy framework, and said that the list was too long, its content too broadly drawn and some of the 111 areas listed were so imprecise “as to be incapable of meaningful understanding”. It suggested that the proposed approach “threatens to encroach on matters that are already devolved and legislated on by Holyrood under the current settlement.”
63.Rt Hon David Mundell MP, Secretary of State for Scotland, told the Scottish Affairs Committee that there had been significant progress made in terms of how powers and responsibilities currently exercised in Brussels would be returned to the United Kingdom and on to Scotland. This had been discussed in both bilateral meetings and at the JMC (EN). He explained that an exercise was going ahead to examine how different policy areas would be dealt with after the UK had left the EU, and that once that evaluation was complete, the aim was “to press ahead as expeditiously as possible [ … ] in terms of determining which of the 111 responsibilities [ … ] would go directly to the Scottish Parliament and which will be the subject of discussion for a UK-wide framework.” He explained that for those policies where UK frameworks were deemed necessary, they would be developed with the devolved administrations, saying that “a UK framework is not a framework that the UK Government impose; it is a framework that is agreed across the United Kingdom.”
64.Robin Walker told us that the Government wanted to have a constructive conversation with the devolved administrations to discuss where shared frameworks would need to be maintained (as they exist at the moment in the European structure), and where they would not be necessary, so that those powers would be able to be passed on to the devolved administrations. He explained that this work would proceed alongside the Bill, and that the intention of the Bill was “to increase the power of each of the devolved administrations.”
65.Witnesses raised the need for a mechanism for releasing powers to the devolved administrations. Laura Dunlop QC suggested that “there would probably be a need to draw on several different tools in order to achieve an agreed position.” She referred to proposals published by Mark Lazarowicz on the Scottish Centre on European Relations website. Mr Lazarowicz’s options were not mutually exclusive, and in summary were:
66.Dr Hunt pointed out that there were already mechanisms which provided an opportunity for intervention if any devolved legislative action looked as if it might put the UK outside its obligations in international law. She suggested that Clause 11 “could simply be removed, as has been suggested by the Governments in Scotland and Wales” and that:
There could be an understanding—given this idea of trust that the UK Government is asking for—that, similarly, there is trust that the four nations together would work in such a way for the continued betterment of the United Kingdom. Why would there be an impetus to diverge?
67.When we asked Ministers whether they had considered including a sunset clause, Robin Walker said that the Government aimed to reach agreement on framework issues very soon and so a sunset clause would not prove necessary:
I would draw your attention to the fact that the timetable on which we envisage reaching agreement on these things is much faster than any of the existing sunset clauses within this Bill. It is something that we would like to make rapid progress with. We have had a meeting of the JMC, in which common, shared principles have been agreed. There is technical work now going on to take that forward and look at the areas where they may not be necessary. I would hope that we can deliver on that in a timescale that will mean this debate about sunset clauses will be irrelevant.
68.In its Third Report, our predecessor Committee pointed to the need for a mechanism through which the devolved administrations could seek to influence UK Government decisions, such as international trade deals, which related to devolved policy areas or had a particular impact on their nations. When asked about this issue, Laura Dunlop QC said that:
At the moment, there is a sense of a double-whammy: that the international arrangements, whatever they are going to be, will be negotiated by the UK Government, and then the UK Government will be telling the devolveds what they have to do to comply with them. The participation is minimal.
69.Dr Dawar explained that it was difficult in practice to separate devolved interests from international responsibilities. She referred to the example of government procurement which is already devolved, and questioned how the Government could, for example, enter negotiations to go into the Government Procurement Agreement, an ambition stated in the Trade White Paper, without having previously set up some body to take account of the different interests of the devolved nations. She explained that:
One of the problems that I see, from an international perspective, is that the UK Government are still responsible for international relations and treaty-making. For example, in the WTO, the UK Government are going to have to do those negotiations. When you look at complying with international obligations under Clause 8, the sequencing is not clear. For example, the Government might put in place a mechanism whereby they could be first among equals, or some sort of acceptable way of discussing these issues with the devolved regions before they make these international agreements and negotiations. At the moment, it is not really clear whether the UK Government are going to make these international negotiations on issues that touch on the devolveds.
70.During its visit to Swansea, Professor Brian Morgan explained the possible problems if the UK Government were to negotiate trade deals with new partners such as Australia, New Zealand and the United States:
I see that as a big problem area, because as we move towards free trade, we will be negotiating across different sectors, and if we want people to open up their markets to our cars, for example, we might well be—erroneously, in my view—agreeing to open up our market to their agricultural produce. That type of increased competition in the short run would be devastating for Welsh farmers.
71.The Government established a Joint Ministerial Committee for EU Negotiations (JMC (EN)) for consulting the devolved administrations on their priorities for Brexit. The role of the Committee is “to seek to agree a UK approach to, and objectives for, negotiations, and to consider proposals put forward by the devolved administrations.” The Committee met on 9 November and 7 December 2016 and on 19 January and 8 February and 15 October 2017. We note that the JMC (EN) has met only once since Article 50 was triggered over seven months ago. Our predecessor Committee considered the effectiveness of the JMC (EN) in its Third Report, and concluded in March 2017 that the evidence suggested that these meetings had not been effective from the point of view of the devolved administrations. It recommended that the Government establish a more effective process for engaging the devolved administrations.
72.Witnesses stressed the need for effective mechanisms to support co-operation among the four nations. Dr Hunt said that:
The existing informal structures that we have, around JMCs and the memorandum of understanding, work fine when relations are fine, but we need the institutional structures for when things get difficult. That is missing here at the moment.
73.Dr Hunt pointed to the suggestion from the Welsh Government’s First Minister of a UK Council of Ministers, which would include, as in the EU structures, the representatives of the devolved Governments. She explained that:
It exists in different formations; there is not just one Council of Ministers. It meets together to discuss issues on agriculture, on environment, on fisheries and on social matters. There could be that meeting of ministers, which we have to some extent with JMC, but made into a decision-making body. There are suggestions too about giving that a statutory basis, so there would be an Act of Parliament to settle those structures.
74.Dr Hunt was positive about the progress on common frameworks which was announced in the JMC (EN) communique from the October 2017 meeting, but pointed out that it was important “to reaffirm the idea that there is space for diversity and difference”. She compared the operation of a future UK framework to the way in which the EU single market operates using a variety of instruments to maintain conformity. She explained that:
Yesterday we had the JMC. There looks to be something of a breakthrough coming there, and some of that is an acknowledgement that when we are talking about common frameworks it is not necessarily a top-down imposition of one uniform legal rule for the whole UK. It is looking to the sorts of things that we have seen for decades from the EU, and looking at the space there for flexibility and diversity. There are all sorts of ways that you can bring a market together. There are legal and extra-legal techniques that can be used to create a common market.
75.Laura Dunlop QC said that it was important to distinguish between the mechanisms required for the two distinct stages of negotiating common frameworks and then implementing them. There would also be a need for an independent dispute resolution mechanism, such as the Supreme Court or a bespoke arbitration mechanism. She said that the first stage of negotiating frameworks required negotiation and agreement, and that the JMC (EN), perhaps strengthened in some way, could be the forum in which that kind of negotiation could take place and agreement could be reached.
76.The Institute for Government has suggested that one way to handle negotiations in respect of international trade deals in future would be to create a JMC specifically for international trade. Dr Dawar said that such a body “would definitely be helpful” in terms of developing a common understanding on complex trade issues.
77.Whilst the Government has said that it plans to work with the devolved administrations to reach agreements on UK common frameworks, the devolved administrations have insufficient trust in the process for agreeing these future relationships and have, accordingly, indicated that they will withhold legislative consent from the Bill. The Government must improve engagement with the devolved administrations to resolve this deadlock. It must reach an agreement with the devolved administrations, which might result in changes to the Bill, setting out how and when reserved competencies will be devolved.
78.Our predecessor Committee heard evidence that the JMC (EN) meetings had not been effective from the point of view of the devolved administrations. The future arrangements for the UK after leaving the EU will only be successful if they work for the whole of the UK. This will only be possible if there is mutual trust and cooperative, participative mechanisms for joint working between the UK Government and the devolved administrations. These mechanisms will be required not just to resolve issues relating to the repatriation of EU competencies, but also in the long term to ensure that devolved interests are properly considered when developing new international agreements.
79.We recommend that the JMC (EN) meets much more regularly and that it addresses the concerns expressed by the devolved administrations about the effectiveness of its operations. Government should also set out whether it is considering formal structures for inter-governmental relations, and its proposed arbitration system for disputes, so that the views of the devolved governments can be heard, including in any future trade agreements.
87 [Bill 5 (2017–19) – EN] p5
88 Ibid p11
89 Department for Exiting the European Union, , Cm 9446, March 2017, paras 3.4–3.7
90 Rt Hon David Mundell MP, Secretary of State for Scotland, Q10, , 24.10.17
91 Joint statement by the First Ministers for Scotland and Wales on the , 13 July 2017. Note Northern Ireland has not had a functioning Executive since January 2017.
92 Q71 (Laura Dunlop QC)
93 Q79 (Dr Jo Hunt)
94  UKSC 5 para 50
95 Ibid, para 151
96 , BBC, 4 April 2017
97 Q85 (Laura Dunlop QC)
98 Q83 (Dr Jo Hunt)
99 Q85 (Dr Jo Hunt)
100 Q201 (Robin Walker)
101 Q69 (Dr Kamala Dawar)
102 The Faculty of Advocates (), para 25. See also Q80 (Laura Dunlop QC)
103 Oral evidence taken before the Scottish Affairs Committee on 24 October 2017, HC (2017-19) 376, [Rt Hon David Mundell MP]
105 Q193 (Robin Walker)
106 Q76 (Laura Dunlop QC)
107 Qq 94–95 (Laura Dunlop QC)
108 Scottish Centre on European Relations, Mark Lazarowicz, 20 September 2017
109 Q69 (Dr Jo Hunt)
110 Q202 (Robin Walker)
111 Q75 (Laura Dunlop QC)
112 Q74 (Dr Kamala Dawar)
113 Q71 (Dr Kamala Dawar)
114 Oral evidence taken on 2 March 2017, HC (2016-17) 815, [Prof Brian Morgan]
115 HM Government, , Cm 9417, p 17
116 Third Report of Session 2016–17, , HC 1125, para 74
117 Q79 (Dr Jo Hunt)
118 Q103 (Dr Jo Hunt)
119 , 16 October 2017
120 Q80 (Dr Jo Hunt)
121 Q80 (Laura Dunlop QC)
122 Q107 (Dr Kamala Dawar)
17 November 2017