The EU referendum was won on the back of promises to "take back control" from Brussels, but the question of where this control should reside post-Brexit has proven to be a complex and politically contentious issue in the continuing Brexit debate. Although the Welsh and UK governments have now reached an agreement on the devolution provisions in the EU Withdrawal Bill1 ("EUWB"), the Scottish Government is not backing down. It seems that Westminster and Holyrood are set for a legal and political collision, with potential implications for the stability of the Union.
The situation in a nutshell
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Brexit means that many powers currently exercised in Brussels may be repatriated to the UK. Many of these powers fall into policy areas that have been devolved to the Scottish, Welsh and Northern Irish governments. If the devolution settlements remain untouched, such powers will be automatically returned to the devolved legislatures on exit day, whether this is at the end of a transition period or on 29 March next year.
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The UK Government has promised that the majority of repatriated powers will return to the devolved administrations. However it has also identified 24 policy areas where UK-wide legislative frameworks will be required to prevent regulatory divergence that could undermine the UK's own common market and its ability to fulfil its international treaty obligations. These areas include agriculture, fisheries and product standards.
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The 24 policy areas have been agreed by the devolved bodies, however the question of how the UK-wide frameworks will be set up and run and how the devolved powers will operate in the meantime has proven to be highly contentious.
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Although the Welsh and UK governments have reached an agreement on the devolution provisions that are to be included in the EUWB, the Scottish Parliament has refused to give its consent to the legislation.
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Theresa May now has to choose between pressing on with the EUWB, disregarding the lack of Scottish consent and facing the political ramifications of doing so, or making further concessions. To add to the complexity, Scotland's own rival legislation, the "continuity bill"2, which was introduced as an insurance measure, is facing a Supreme Court challenge in the summer.
Where are we now?
The devolution settlement and the need for consent
Under the current devolution settlements, the devolved administrations can legislate on all matters apart from those that are explicitly reserved to Westminster (for example, foreign policy and immigration). If the UK Parliament wants to pass legislation on a devolved matter, it must seek permission from the devolved bodies via a legislative consent motion ("LCM"). This procedure has arisen out of the Sewel Convention, which dictates that Parliament will not "normally" pass laws that directly affect a devolved area or change the competence of the devolved administrations without their consent. LCMs have been used as part of the EUWB process because it proposes to alter the powers of the devolved bodies.
The EUWB
The current amendments to the devolution provisions in the EUWB ensure that all devolved powers returning from Brussels will be transferred directly to the administrations by default. However, the amendments also give Whitehall ministers the power to introduce secondary legislation to suspend the legislative powers of the devolved administrations in the areas that have been identified as requiring UK-wide frameworks. This aims to ensure that the status quo of the union is maintained and prevent any regulatory divergence within the UK while such frameworks are developed.
The Welsh and Northern Irish
After months of debates the National Assembly for Wales voted by 46-9 to grant consent to the EUWB; the leader of the Welsh negotiations on the EUWB, Finance Secretary Mark Drakeford, stated that it had "defended and entrenched" the existing devolution settlement.
As Northern Ireland is currently without a government, the Assembly is unable to use its legislative consent powers to scrutinise and vote on the EUWB.
Sticking points for the Scottish
The Scottish Parliament has refused to agree to the text. The EUWB suffered a resounding defeat of 93 to 30, with Labour, the Liberal Democrats and Scottish Greens all backing Nicola Sturgeon's staunch opposition to the UK Government's proposals. Yesterday, the SNP's Westminster leader Ian Blackford was thrown out of the Commons chamber after refusing to sit down, as he protested against what he called a "democratic outrage", i.e. that MPs had not been given sufficient time to debate the devolution amendment. This led to a mass walk out by SNP MPs.
The key sticking point for Scotland relates to the ability of UK Ministers to pass regulations that will restrict the Scottish Parliament's legislative powers within the 24 policy areas identified. Under the current provision, a Minister can proceed with such regulations even if the devolved administrations decide to withhold their consent. This means that Westminster could unilaterally restrict the legislative abilities of the Scottish Parliament. Whitehall has stated in the intergovernmental agreement3 that regulations will "not normally" be passed without such consent but this is a purely political commitment.
Mike Russell, Scotland’s Minister for UK Negotiations on Scotland’s Place in Europe, has described the current proposals as a "crude power grab" and an affront to the current devolution settlement. Scottish ministers have continued to push for the two options outlined by Nicola Sturgeon in her letter to the Prime Minister last month. The first is to remove the devolution clause from the EUWB entirely and put in place an agreement between the administrations not to legislate in devolved policy areas during the negotiations on frameworks. This has been firmly rejected by the UK Government.
The second is to ensure that any regulations introduced to suspend the legislative powers of the Scottish Parliament will require its consent. Whilst David Lidington has stated that Whitehall is "open to suggestions that would improve the Bill", this proposal is continuing to face strong resistance. Its opponents argue that it would effectively grant Scottish Parliament a veto, going further than what is required by the Sewel Convention.
Where do we go from here?
Some commentators had suggested that the Sewel Convention could assist the devolved bodies in ensuring that Parliament does not pass the legislation without their consent. However the Supreme Court put an end to this speculation by making clear4 that it does not restrict the ultimate sovereignty of the UK Parliament and it cannot be enforced by the courts. In other words, the EUWB can be passed by the UK Parliament without Scottish consent. However doing so would take the UK into unchartered territory and the significance of such a move will be heightened by its context. Any imposition of the EUWB will come at a time of a "substantial lack of trust" (to use the words of Mike Russell) between the devolved administrations, of increasing criticism of the Joint Ministerial Committee as ineffective, and calls from the SNP for a second independence referendum.
If EUWB is passed in its current state, Scotland's remaining option will be to continue to exert political pressure by using its "continuity bill", which was passed by its Parliament in March. This is Scotland's own version of the EUWB, designed to act as backstop in the event that it fails to reach an agreement with the UK Government. However this is facing a legal challenge in the Supreme Court by the UK Government on the basis that it falls outside of the Scottish legislative competence. The SNP is sticking to its guns; its Westminster leader Ian Blackford recently told Westminster, "see you in court". It therefore seems increasingly likely that this battle will be fought before the Supreme Court. The hearing will certainly raise interesting points of constitutional law surrounding the devolution settlements but the outcome will not have much legal significance in this context. If the bill is held to be within the legislative competence of the Scottish Parliament, Whitehall could still pass the EUWB without making any amendments; due to the sovereignty of the UK Parliament, the EUWB will supersede the continuity bill, rendering it ineffective.
In short, if Scotland remains firm in its opposition to the current proposals, its options will be limited; it will have no legal recourse to prevent the imposition of the EUWB and must rely solely on the strength of the political pressure on, and will of, the UK Government to make concessions.
[1] European Union (Withdrawal) Bill 2017-19
[2] UK Withdrawal from the European Union (Legal Continuity) Scotland Bill
[3] Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks, accessible at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/702623/2018-04-24_UKG-DA_IGA_and_Memorandum.pdf.
[4] In R (Miller and Dos Santo) v Secretary of State for Exiting the European Union [2017] UKSC 5
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