A different light on the European Union (Withdrawal) Bill

We are delighted to introduce the first in a series of guest articles on Brexit-related topics. Ian Wattie, Managing Partner of Scottish law firm Burness Paull LLP sheds a different light on some of the implications of the European Union (Withdrawal) Bill.

Repatriating the EU rules governing 153 separate policy areas (including many which have been devolved such as farming, fishing, health and the environment) was always going to cause friction between Westminster and the devolved governments in the UK. Not surprisingly, no agreement has been reached on the division of returning powers between Westminster and Holyrood. With competing legislation in each parliament on the retention and amendment of EU laws, the Scottish legislation has now been challenged by the UK government in the Supreme Court. This is just one of a number of unprecedented situations coming out of Brexit.

What are the competing pieces of legislation?

The European Union (Withdrawal) Bill (the 'EUWB'), brought forward by the UK government, is currently undergoing scrutiny in the House of Lords. The stated aim of the EUWB is to convert EU law 'as it stands at the moment of exit into domestic law' and gives UK government ministers the powers to make necessary changes to ensure that the 'converted' legislation works in practice.

The Scottish government, meanwhile, has brought forward the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the 'Continuity Bill'). The Continuity Bill mirrors the EUWB closely in that it provides for EU law to be retained within UK law (specifically Scots law, and only in so far as it relates to devolved matters) and gives the Scottish government the power to make any necessary adjustments.

How did we get to this situation?

Initially branded a 'power grab' by the devolved governments, at the heart of the controversy surrounding the EUWB is the bill’s approach to how EU rules affecting areas of devolved competence (such as food, fishing, agriculture and justice) will be treated once they are converted to UK law. Essentially, all EU law would be reserved initially to Westminster, and thus off-limits to the devolved legislatures, until an Order in Council is made by a UK minister.

The Scottish Parliament’s cross-party Finance and Constitution committee was of the opinion that the EUWB was 'incompatible with [Scotland’s] devolution settlement'. Under the Scotland Act 1998 all issues are assumed to be devolved unless specifically reserved to Westminster. The committee recommended that the Scottish Parliament refuse to give the EUWB the legislative consent motion which the devolved legislatures, by convention, give when Westminster legislates over devolved areas.

There followed many months of negotiation between the Scottish and Welsh governments (on one side) and the UK government on the devolution content of the EUWB. The UK government’s position was that powers had to revert centrally to Westminster so that the required internal UK-wide frameworks could be established, but that it would 'respect the devolution settlements and the democratic accountability of the devolved legislatures'.

Citing a lack of any meaningful progress in the talks, the Continuity Bill was passed as emergency legislation by the Scottish Parliament with equivalent Welsh legislation being passed by the Welsh Assembly in tandem. Both bills now await the Royal assent needed to become law.

What is happening now?

The Continuity Bill has been referred to the UK Supreme Court by the UK government’s law officers, on the grounds that it exceeds the legislative competence of the Scottish Parliament because (they argue) it enacts legislation contrary to EU law. This was the view taken by the Presiding Officer of the Scottish Parliament – querying for the first time the legislative competence of a government bill. However, it is the position of the Scottish government and its chief law officer, the Lord Advocate that as the Continuity Bill will not have any effect until after Brexit, it cannot be said to be incompatible with EU law.

After many months of negotiation, the UK government brought forward amendments designed to appease the devolved administrations. As the bill now stands, all areas of policy will revert to the devolved parliaments unless specifically retained by Westminster for the purpose of establishing UK-wide frameworks. All sides accept that these are necessary to some extent in areas such as fishing and farming. And so, 24 policy areas are to be retained, rather than the original 153. The consent of the devolved parliaments is to be sought on the areas that are to be retained at Westminster (although if deadlock is reached the UK government can act unilaterally). There are also now 'sunset provisions' to guarantee that the retention of powers by Westminster will only be temporary.

These amendments have satisfied the Welsh government (rendering the Welsh Continuity Bill redundant) and have allowed them to recommend that the Welsh Parliament grant the legislative consent motion in respect of the EUWB.

The Scottish government remains dissatisfied (in the main) with the mechanism to establish the UK-wide frameworks, stating that if the Scottish parliament refuses to give consent to a framework, the UK government can proceed in any case (in line with the deadlock provisions), rendering the requirement for consent meaningless.

What will happen next?

The last day that the Scottish Parliament can give legislative consent to the EUWB is 16 May 2018. Talks are expected to go down to the wire. The UK parliament would be within its rights to legislate ‘over the top’ of the Scottish parliament – but the political implications of doing so could be serious.

This article is for information purposes. It is not a substitute for legal advice, and should not be relied upon as such. 

For more information contact Ian Wattie, Managing Partner at Burness Paull LLP at ian.wattie@burnesspaull.com.