Legislating for Brexit: the Devolution Aspects Aileen McHarg University of Strathclyde

Brexit and Devolution: A Play in Three Acts A clash of competing constitutional visions: pluralist versus unitary An assertion of, and resistance to, a principle of territorial consent to Brexit played out over three Acts: Act 1: The European Union Referendum Act 2015 Act 2: Miller and the European Union (Notification of Withdrawal) Act 2017 Act 3: the European Union (Withdrawal) Bill The claim to territorial consent has become narrower but stronger as Brexit has progressed; Conflict resolved in Acts 1 and 2 in part by deflecting issues of territorial consent into the future; In Act 3, a final resolution cannot be avoided.

The European Union (Withdrawal) Bill: Version 1 Devolution aspects of the EU (Withdrawal) Bill (as introduced): UK ministerial powers (clauses 7 – 9): Exceptionally wide powers, including Henry VII powers, with no protections for the Scotland Act/Government of Wales Act; and no requirement for devolved consent if exercised in areas of devolved competence. Devolved ministerial powers (clause 10 and sch 2): Much more limited than equivalent UK Government powers (why?) and subject to requirements to consult/gain consent of UK Ministers Future legislative competences (clause 11) Obligation on devolved legislatures to comply with EU law replaced by a new obligation not to modify ‘retained EU law’; Except where particular competences removed from the scope of the restriction by Order in Council.

The European Union (Withdrawal) Bill: Version 1 Clause 11: a necessary constitutional adjustment or an unprincipled power grab? A complex and unprincipled approach to the determination of devolved competence; Broader than necessary to secure legitimate UK-wide interests; Uncertainty/disagreement about principles (and timescales) on which competences might be reserved/devolved; Asymmetry of treatment of UK and devolved institutions; Inconsistent with the principle of territorial consent. Scottish and Welsh Governments refuse to agree.

The European Union (Withdrawal) Bill: Version 2(?) Intergovernmental negotiations via JMC(EN) Minor amendments to devolved and UK ministerial powers in the House of Commons and House of Lords Proposed UK Government amendments to clause 11 published 13/3/18: Scottish and Welsh Governments still refuse to agree Scottish and Welsh Continuity Bills passed and referred to the Supreme Court; Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks, plus proposed government amendments to clause 11 and sch 2, published 25/4/18 Welsh Government agrees to recommend consent; Scottish Government continues to refuse consent.

The European Union (Withdrawal) Bill: Version 2(?) New clause 11: Default position in favour of devolution; Exception that devolved legislatures cannot modify retained EU law in areas specified in regulations made by UK Ministers; Regulation-making power expires two years after exit day; Regulations expire after 5 years; Regulation-making power subject to ‘consent requirement’; Duty on UK Ministers to report to the UK Parliament on progress on implementing common frameworks and removing temporary clause 11 regulations. Restrictions on devolved ministerial powers removed.

The European Union (Withdrawal) Bill: Version 2(?) Intergovernmental Agreement: Aim is to secure temporary preservation of EU law in areas where legislation is required to establish new common frameworks; 24 areas of devolved competence where common frameworks required (plus 2 areas where devolved/reserved status disputed); Temporary preservation for England secured by UK Government undertaking not to legislate to change policy for England while devolved legislatures are subject to clause 11 regulations; UK and devolved governments will continue to work together to establish common frameworks (based on principles agreed at JMC(EN) Oct 2017); Undertaking that Sewel Convention will continue to apply to primary legislation establishing common frameworks in areas governed by clause 11 regulations.

The European Union (Withdrawal) Bill: Version 2(?) Very significant movement from the Bill as initially drafted: Presumption in favour of devolution; Re-reservation of powers clearly temporary and transitional; Much greater clarity on areas where reservation powers will be exercised; Important commitments to establish common frameworks through co-operation and agreement, rather than by unilateral UK-level action. BUT: No guarantee of action only by consent: Consent requirement may be satisfied by refusal of consent or refusal to answer; UK Government can therefore still alter devolved competences without devolved consent; Still no consent requirement for the exercise of UK ministerial powers in devolved areas. “Temporary” restrictions may last up to 7 years post-Brexit; Continuing asymmetry between UK and devolved levels: Devolved institutions are subject to hard legal constraints; UK institutions to soft, political undertakings.

The European Union (Withdrawal) Bill and the Sewel Convention UK Government accepts that the EUWB is subject to the Sewel Convention; Consent requirement has forced UK Government to negotiate (but why introduce a Bill which was clearly unacceptable in the first place?); What are the options? A deal is still possible: Cross-bench amendments may enable the Scottish Government to consent; Further UK Government concessions may enable the Scottish Government to consent; House of Lords Third Reading is the final deadline for a deal; The Scottish Government refuses to consent: The EUWB is amended so as not to apply to devolved matters in Scotland; Is there a realistic alternative? Clause 11 is imposed without consent: Consent is only “normally” required; Would it be constitutionally justifiable to ignore the consent requirement?

The European Union (Withdrawal) Bill and the Sewel Convention When can devolved consent be dispensed with? The Sewel Convention is a normative obligation not merely a statement of constitutional practice; The abnormality of Brexit does not, by itself, justify making an exception to Sewel; Exceptions must be constitutionally justified: Necessity Is it necessary for the EUWB to apply to devolved matters, or merely desirable? Abuse of power: Is the Scottish Government acting unreasonably in continuing to refuse consent? Are they obliged to act reasonably? Catch 22: ignoring Sewel would vindicate their concerns. Does Sewel require devolved consent to be secured or merely to be sought?

The Scottish Continuity Bill Is there an alternative? UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill; Secures continuity of effect of EU law within devolved competence; Confers powers on Scottish Ministers to adjust the devolved statute book. Is it desirable? Two sets of (similar but not identical) continuity provisions would further complicate the post-Brexit legal system; But, complexity is a feature of devolution and not unique to retained EU law. All new common frameworks would have to proceed by consent – no guarantees for the UK Government; But, UK Parliament is sovereign and can ultimately impose common frameworks by primary legislation if genuinely necessary Is it within devolved competence? Negative Presiding Officer Certificate Referred by UK Law Officers to the Supreme Court Is the Bill compatible with EU law? Does it encroach upon reserved matters?

What Happens Now? Which will come first: the enactment of the EUWB, or a Supreme Court decision on the vires of the Scottish Continuity Bill? Even if otherwise within devolved competence, the Scottish Continuity Bill (probably) can’t survive the enactment of the EUWB: Sch 3, Pt 2, the EU (Withdrawal) Act becomes a “protected enactment” under the devolution legislation; Will the UK Government await the outcome of its own Supreme Court reference? If the Bill is beyond competence, necessity requires that the EUWB’s continuity/correction provisions extend to devolved matters in Scotland, but does it require the application of clause 11?

Conclusion: Brexit – A Crisis for the Territorial Constitution? The constitutional end game is approaching, but we’re not (yet) quite there. Brexit has shifted from a crisis for the territorial integrity of the UK state to a crisis for the territorial character of the UK state. Brexit has exposed the weaknesses of devolution: Weak mechanisms for shared rule; Weak guarantees of self-rule; Devolution as an under-theorised and under-tested constitutional model. A political constitution requires political cunning and political luck: An important tactical alliance between the Scottish and Welsh Governments; Has the Scottish Government overplayed its hand? The 2017 general election as a political turning point? Is Brexit just too difficult? Wither the territorial constitution? What are the likely consequences of imposing clause 11? An exceptional situation, or a permanent weakening of devolution? Does the public care?