When the Government introduced the European Union Withdrawal Bill in 2017 - the landmark Brexit legislation whose aim was to provide legal certainty post Brexit - the devolved administrations were largely sidelined, either willfully or ignorantly.
The Bill, whose main purpose is to retain most of EU law to avoid a legal vacuum in our statute book on exit day, became an Act in July 2018 and is one of the largest legislative projects ever undertaken in the UK.
Yet even before the publication the UK Government demonstrated its lack of respect for the hard-won devolution settlements, despite the constitutional implications. There was little meaningful consultation with the devolved governments prior to the publication of the bill and during its passage and little consideration for the conventions regarding the arrangements for what can be legislated on in the devolved parliaments.This matters because it goes a long way to show the current Government’s utter disregard for established conventions- normally the UK Government will share a draft of any legislation that impacts a devolved area and work through any issues ahead of the final publication of the bill.
In the original drafting of the EU Withdrawal Act, the UK Government proposed that all powers currently exercised at an EU level will flow back to Westminster. That effectively meant that the UK Government could remove former EU rules and regulations for England (and indeed the whole of the UK), but the Welsh Assembly could not do so for Wales. In other words, the only administration that would ‘take back control of our own laws’ were Westminster. There was no place for the devolved nations in this narrative.The justification on the UK Government’s part was that it simply had to freeze the competencies of devolved nations to legislate in their areas while new UK-wide legal and regulatory frameworks were developed. But, as we argued at the time, a set of regulatory framework must be mutually agreed between the four administrations and respect the current devolution settlements. The EU Withdrawal Act failed to do both.
This lack of consideration of the devolution settlements put the Government on a collision course with both the Welsh and Scottish administrations and after much pressure they were forced to make concessions to the proposed legislation.
The EU Withdrawal Act 2018 now sets out that devolved administrations can in fact modify retained EU law in devolved policy areas, unless the UK Government specifies that it can’t. The procedures set out in the EU Withdrawal Act requires more consultation and involvement with the devolved administrations than what the original Act did- the legislation sets out that freezing devolved powers will not normally be done without a consent of the devolved administrations. However, if one of the devolved administrations does not consent to UK’s decision to freeze a policy area where common frameworks are required, there are no fatal consequences. All the UK Government then have to do is to lay statement in parliament explaining why they’ll push ahead with the decision to freeze a devolved competence.
The purpose of effectively freezing devolved competence in certain policy areas is so that the UK government can develop a set of frameworks that applies to the whole of UK, thereby avoiding regulatory divergence in areas such as food safety, hygiene law and food labelling post-Brexit. The UK government and the devolved administrations have estimated that there 24 such areas where a UK-wide set of frameworks with a legislative underpinning area will be necessary.
The Welsh government accepted this compromise- the Scottish on the other hand refused to give consent to the EU Withdrawal Act. Instead, they introduced their own Brexit bill resulting in a legal dispute between the UK and Scottish governments.
It is significant that the Scottish Government refused to give legislative consent to the EU Withdrawal Act. What is more significant is that the UK government ignored it and pushed ahead with the legislation regardless. When the UK government wants to make laws that affect devolved nations, it normally seeks consent from the devolved governments- this is known as the Sewel Convention. But the EU Withdrawal Act demonstrated this is a convention that can be - and has been - ignored. The Public Administration and Constitutional Affairs Committee recently noted that while this convention has been entrenched in legislation, there have been no corresponding parliamentary procedures put in place to recognise the convention in the legislative process. When taking evidence, considerable ambiguity and uncertainty around the interpretation and operation of the Sewel Convention were exposed.
The current devolution settlements were predicated on UK’s membership of the EU- it is therefore inevitable that UK’s decision to leave the EU has sparked a series of questions, tensions and disagreements of the UK’s constitutional arrangements post Brexit. The past year have shone a light on the constitutional fragility of the UK- from the UK government's treatment of Wales and Scotland during the passage of the EU Withdrawal Act to the issues surrounding the Irish border we are undoubtedly in uncharted territory.
The Brexit process and the UK’s government ignorance of the devolved nations have also led to unintended consequences. Brexit is damaging support for a united union- a recent poll for ‘The Independent’ newspaper found, following worries about Brexit, a majority (47-43) now in favour of Scottish independence and (52-39) for Northern Ireland joining the Republic. It remains to be seen whether the UK government will in fact take the concerns of the devolved nations seriously as the UK exits the EU.