Monday, 14 August 2017

EU (Withdrawal) Bill - Devolution and other points

This post looks at Legislative Consent and some other matters raised by the European Union (Withdrawal) Bill which was presented to Parliament on 13th July.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - InterpretationFrancovich and Ministerial powers to legislate.

: Clause 1 :

"The European Communities Act 1972 is repealed on exit day."  As noted in this previous post, Clause 1 will repeal the mechanism by which EU law has been able to enter the domestic legal systems of the United Kingdom.  The Bill does not set out a single date to be Exit Day and it is for Ministers to decide.

Given that repeal of the ECA 1972 will bring about major constitutional and legal change, it might have been prudent for Parliament to retain some form of control over the specific date on which the European Communities Act 1972 is repealed but the Bill does not appear to do so.

: Clause 5 :
Supremacy -

Clause 5(1) states - "The principle of the supremacy of EU law does not apply to any enactment or
rule of law passed or made on or after exit day" and Clause 5(2) informs us that "
the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day.  Then there is Clause 5(3) - "Subsection (1) does not prevent the principle of the supremacy of EU law from
applying to a modification made on or after exit day of any enactment or rule of law passed or made before exit day if the application of the principle is consistent with the intention of the modification."

Once the various EU Treaties no longer apply to the UK, it would logically follow that EU law would no longer apply to the UK.  It is therefore a moot point whether Clause 5(1) is required at all.  However that may be, Clause 5 acknowledges the supremacy of EU law in relation to pre-Exit Day legislation.  It is rather ironic that, for the first time, UK legislation is formally acknowledging the supremacy of EU law!

Charter - 

British politicians have always disliked the European Charter of Fundamental Rights  and, interestingly, it was a Labour Government that negotiated this Protocol to the Lisbon Treaty
The Charter applies to EU Member States when acting within the scope of EU law.   The Department for Exiting the EU issued Factsheet 6 setting out the government position about the Charter.

The Charter will not be part of domestic law on or after exit day - Clause 5(4).  This is no doubt there for political reasons but it cuts across the general aim of the Bill which is to achieve legal certainty such that the law is the same the day after exit day as the day before.

Clause 5(5) makes clear that, whilst the Charter will not form part of domestic law after exit, this does not remove any underlying fundamental rights or principles which exist irrespective of the Charter, and EU law which is converted will continue to be interpreted in light of those underlying rights and principles.

The courts will be placed in the position of deciding how removal of the Charter affects the meaning of retained EU law.  It is possible to think of scenarios in which the courts have to look at pre-exit CJEU decisions which refer to the Charter and which are relevant to retained EU law.  It would have been much tidier legally had the Charter been accepted as part of Retained EU law.

Clause 5 receives a fuller explanation in the Explanatory Notes - HERE

: Legislative Consent :

The Scottish and Welsh First Ministers have announced  that they cannot recommend giving legislative consent to the European Union (Withdrawal) Bill in its present form - Joint Statement by the First Ministers of Scotland and Wales.  The Bill is seen as a "blatant power grab" by London.  The Ministers say that - "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."

Devolution of Legislative power:

The Scottish Parliament has only the legislative competence given to it by the Scotland Act 1998 section 29  but it is an extensive competence because Scotland may legislate for anything that is not excluded by the Scotland Act 1998.   Section 29(2) states:  "A provision is outside that competence so far as any of the following paragraphs apply - (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters, (c) it is in breach of the restrictions in Schedule 4, (d) it is incompatible with any of the Convention rights or with EU law, (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland."

Regarding the European Union (EU), section 29 requires that Scottish legislation has to be compatible with EU law and,  under section 30 and Schedule 5.  relations with the EU are a reserved matter.  (Similar provisions apply to Wales and Northern Ireland).


As a matter of law, these arrangements do not prevent the United Kingdom Parliament from legislating for Scotland even in  relation to matters that have been devolved but, under what has become known as the Sewel Convention, it will not normally do so.  The Convention was recently put into statutory form by the Scotland Act 2016 which added subsection 8 to the Scotland Act 1998 section 28 - "But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

Of course, there is nothing to prevent the UK Parliament legislating for Scotland  (or Northern Ireland or Wales) where it is agreed that it will do so and this is where Legislative Consent Motions enter the picture.

The legal position of the Sewel Convention:

The legal position regarding the Sewel convention (and very probably any other political convention) may now be regarded as settled law due to the Agnew Reference decided by the Supreme Court as part of the Brexit litigation 2016-17.  This was a reference by the Attorney General for Northern Ireland but the principle laid down by the Supreme Court will also apply to Scotland and Wales.

The Sewel Convention was discussed by the court at paragraphs 136 to 151 from which it is clear that the courts will not seek to enforce political conventions (141), that they are a political restriction on the operation of Parliament (145) and that the judges are neither the parents nor the guardians of political conventions but are "mere observers" (146).  The court concluded that, even though the Sewel Convention had been put into a statutory format, it remained a rule which was not justiciable in the courts (148).

Powers returning to the UK from the EU will return to the UK government and it will be for that government to sort out how such powers will be shared with Scotland, Northern Ireland and Wales.  As an example, fishing is a major part of the Scottish economy and Scotland is, for the most part, free to legislate in this area subject to its legislation being compatible with EU law - see EU Maritime affairs and fisheries.   Unless some alternative is agreed with the EU as part of the withdrawal agreement, control of UK fishing will return to the UK government and not directly to Scotland.  Furthermore, Clause 11 of the EU (Withdrawal) Bill will generally operate to prevent Scotland from legislating incompatibly with retained EU law and Scotland will not be able to amend Retained EU law.

Professor Sionaidh Douglas-Scott - London Review of Books - Short Cuts

Professor Mark Elliott - A "blatant power grab"?  The Scottish Government on the European Union (Withdrawal) Bill - 10th August 2017.

: Other Powers for Ministers to legislate :

The Bill is replete with provisions enabling Ministers to bring forward secondary (or delegated) legislation - see earlier post Ministerial powers to legislate. where the powers given by Clauses 7 to 11 were considered.  There are further extensive provision relevant to Ministerial powers:
  • Clause 12 and Schedule 4 are concerned with financial matters. Note the Schedule paras. 1(1), 4 and 6(2) granting Ministers powers to make regulations.
  • Clause 13 and Schedule 5 are about Publication and Rules of Evidence. In a practical sense these provisions will be important when it comes to examining the state of EU law as it was on Exit Day.  The Ministerial power to make regulations relates to Judicial Notice and Admissibility and is in Schedule 5 para. 4.
  • Clause 16 and Schedule 7 are concerned with Regulations.  This Schedule extends to 21 paragraphs packed with the minutiae of the scrutiny of Ministerial powers.
Para 3 of Schedule 7 permits, in relation to certain regulations that "the instrument may be made without a draft of the instrument being laid before, and approved by a resolution of, each House of Parliament if it contains a declaration that the Minister of the Crown concerned is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.  (See the Schedule for further detail).
  • Clause 17 and Schedule 8 - here we find Ministerial powers to make regulations in Clause 17(1) and 17(5).    Clause 17(1) provides that - "A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act" and then - Clause 17(2) - "The power to make regulations under subsection (1) may (among other things) be exercised by modifying any provision made by or under an enactment."   Clause 17(5) states - "A Minister of the Crown may by regulations make such transitional, transitory or saving provision as the Minister considers appropriate in connection with the coming into force of any provision of this Act or the appointment of exit day."
The likelihood is that the Regulation making powers will result in perhaps thousands of separate items of secondary legislation.  At best, the majority of this material will received little Parliamentary scrutiny. As Professor Sionaidh Douglas-Scott - London Review of Books Short Cuts points out -

"The Withdrawal Bill does not propose new methods of scrutiny for this vast raft of secondary measures but proper scrutiny would have very serious implications for MPs’ workloads and would test the capacity of the House of Commons. According to the bill, the use of these exceptional ministerial powers is limited by a sunset clause to two years post Brexit, but it’s doubtful whether there will be sufficient time to deal with all this secondary legislation.

There’s a dilemma here: in order to get the statute book ready for Brexit, speed and expedition is necessary, otherwise there will be legal chaos on exit. But if Parliament adheres to the bill’s proposals, there could be a serious lack of democratic scrutiny. This is one of the unpleasant paradoxes of Brexit – either way, there are unpalatable constitutional consequences. As the former lord chief justice, Lord Judge, said recently, ‘my main concern is that by the time the Brexit process has finished its parliamentary journey, we shall have irremediably cemented lawmaking by unscrutinised legislation into our constitutional arrangements.’

A comprehensive list of delegated powers in the Bill may be seen at Delegated Powers Memorandum


Professor Mark Elliott 14th August - The Devil in the detail: Twenty questions about the EU (Withdrawal) Bill.   "I have been looking carefully at the EU (Withdrawal) Bill recently. To say that it is byzantine in nature would be to do a disservice to the Byzantine Empire. The Bill is (or at least seems to me to be) unnecessarily complex, ambiguous and tortuous in both structure and drafting."

Professor Phil Syrpis (Professor of EU Law Bristol) - European Union (Withdrawal) Bill: paving the way towards a very uncertain future.

Constitution Unit UCL - European Union (Withdrawal) Bill - Constitutional change and legal continuity and To devolve or not to devolve - the EU (Withdrawal) Bill and devolution

Media etc:

The House of Lords Select Committee on the Constitution - The "Great Repeal Bill" and delegated powers

The Independent 14th August - Tories attempt to hijack powerful decision-making committee to ram through new post-Brexit laws

The Independent 13th July - Repeal Bill: 1000 "corrections" to EU law will be made without MPs necessarily voting on them.

Parliament - Committee of Selection

Department for Exiting the EU - About the Repeal Bill

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