By Gethin Rhys, National Assembly Policy Officer at Cytûn (Churches Together in Wales).
Unlike the other UK devolved nations, Wales voted on 23 June 2016 to leave the European Union, and has a Government all but one of whose members come from UK-wide political parties (Labour and the Liberal Democrats). The politics of Brexit in Wales are therefore unique, and navigating the devolved competence of the National Assembly has been handled in a rather different way.
The legislative competence of the National Assembly for Wales is determined by the Government of Wales Act 2006, as amended most recently by the Wales Act 2017 and the European Union (Withdrawal) Act 2018. Schedule 7A of the 2006 Act, as amended, lists 193 matters reserved to the UK Parliament – a far larger number than in the case of Scotland and Northern Ireland. Schedule 7B lists a number of other restrictions on the Assembly’s competence, which are broadly similar to the other two nations.
Despite the narrower scope of Welsh devolution, as with the other two nations, many areas currently covered by EU law – such as agriculture, fisheries, the environment and economic development – are largely devolved and Welsh law in these areas requires modification to cope with Brexit. Unlike the Scottish Government, the Welsh Government accepted the Inter Governmental Agreement which lists devolved areas which will be ‘frozen’ on exit day pending the agreement of UK-wide frameworks. This led to the repeal of the Assembly’s own Law Derived from the European Union (Wales) Act 2018 which, although it received Royal Assent, was never used.
The Welsh Government has co-operated in drawing up UK legislation in preparation for exit day, including:
The Agriculture Bill, Schedule 3 of which provides powers to Welsh Ministers to draw up new patterns of agricultural support payments in Wales and market intervention measures after exit and modify existing legislation in preparation for exit. Part 8 is designed to solve a long-running dispute between England and Wales regarding allocation of the red meat levy.
The Fisheries Bill, Schedule 6 Part 2 of which provides powers to Welsh Ministers to make new provisions regarding fisheries and aquaculture after exit and modify existing legislation in preparation for exit.
The Healthcare (International Arrangements) Bill – as health is a devolved matter.
Each of these Bills, covering devolved areas, requires that the UK Government seek a Legislative Consent Motion in the National Assembly for Wales. The Welsh Government’s Legislative Consent Memorandum on the Fisheries Bill (10 January 2019) provides a good example of the negotiations between the two governments on legislation of this kind, and the disputes that arise over the exact dividing lines between devolved and reserved matters. Although the UK Government is committed to obtaining legislative consent, the precedent of the enactment of the EU (Withdrawal) Act despite the withholding of legislative consent by the Scottish Parliament indicates that, as exit day approaches, negotiations may not always be successful, and the National Assembly has no ‘veto’.
Welsh Government has indicated that in due course it will introduce its own Agriculture and Fisheries Bills which will be fully scrutinised by the Assembly. In the mean time, however, speed is of the essence and including clauses in a UK Bill is seen as a swifter legislative route. Not surprisingly, many Assembly Members – especially in opposition parties – disagree.
The National Assembly is also scrutinising some Statutory Instruments made under the UK’s EU (Withdrawal) Act covering devolved areas. The Assembly’s Constitutional and Legislative Affairs Committee acts as the sifting committee, under an agreed protocol with Welsh Government, and like its Westminster counterparts has been recommending that some statutory instruments (SIs) are upgraded from negative to affirmative procedure. Welsh Ministers are also being given powers by a number of Westminster SIs under the Act. Again, this is seen as a swifter legislative route, but removes the Assembly’s right to scrutinise these SIs, even when they amend devolved legislation. On the other hand, Welsh Government – unlike UK Government – has gone to public consultation on some of its EU withdrawal SIs.
The National Assembly Research Services’s regular Brexit monitoring reports provide an authoritative weekly briefing on Welsh legislative developments and how they interact with the wider UK scene.