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Another Constitutional Conundrum: Clause 11 and the Westminster ‘Power Grab’



The EU Withdrawal Bill

One of the most fundamental pieces of legislation of our time – the EU Withdrawal Bill – will repeal the European Communities Act 1972, putting Parliament back into its pre-EU position.[1] The Bill plans at once, to withdraw the competences of EU institutions and withdraw the UK from the EU. The Bill has been a subject of controversy since it was first drafted (see the writer’s previous article on the Henry VIII Clauses).[2] The Bill continues to be scrutinised, currently with the House of Lords for the second reading (30th – 31st January 2018), as the Brexit clock counts down.[3] This article will consider why clause 11 has been a particular point of scrutiny and why it has been labelled a ‘naked power grab’ of Westminster by the Scottish and Welsh First Ministers.[4]


Clause 11: “Retaining EU restrictions in devolution legislation etc.”

Withdrawal from the EU will mean that competences once held by Brussels, will revert back to the UK. However, the competence to legislate on retained EU law, will not revert back to the devolved powers immediately.[5] Instead, this power will remain vested in Westminster. The Explanatory Notes of the Withdrawal Bill repeats verbatim for Scotland, Wales and Northern Ireland; the devolved powers will not be able to ‘modify, or confer power by subordinate legislation to modify, retained EU law’.[6] The problem thus becomes obvious on closer inspection of the Withdrawal Bill as it currently stands, as Westminster appears to be withholding the competences passed down from the EU, with the intention of legislating on devolved matters. Professor Elliott has noted that the ‘implication’ is that ‘some [competences] will not be handed over’.[7]


The Constitutional Conundrum

It is not ‘illegal’ for Westminster to legislate on devolved matters. Westminster refrain from doing so merely by convention: the Sewel Convention.[8] In the Miller case, which decided that Parliamentary approval was needed before the UK could formally leave the EU, the majority in the Supreme Court offered their views on the Sewel Convention:

“we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.”[9]


The Supreme Court, treading rather cautiously, in effect left the operation of the Sewel Convention to Westminster. Without any authority to limit or restrain Westminster, the Sewel Convention remains merely a convention. The judiciary has spoken on the matter and have plainly and simply said: ‘sorry, it’s none of our business’. The government, when legislating on devolved matters, will seek to obtain a Legislative Consent Motion.[10] Nonetheless, the government is free to legislate on devolved matters notwithstanding this consent (or indeed lack of), thus highlighting why Clause 11 is of fundamental import to the devolved powers. The only real restraint on the power of Westminster to legislate is a political one.


The Response from Scotland and Wales: Moving Forward

The Scottish and Welsh National Assemblies have responded to Clause 11 by labelling it a ‘naked power grab’ and have asserted that they will not provide their consent to the Bill if changes are not made.[11] Both Edinburgh[12] and Cardiff[13] intend to react with their own ‘Continuity Bills’, in the event that the Withdrawal Bill does not ultimately reflect the changes to Clause 11 that have been demanded. What these measures may look like is open to question, however, Professor Douglas-Scott told the BBC news that ‘the greatest value of a continuity bill may be the political pressure it might exert on the UK government to amend Clause 11’.[14]


It is submitted, that to label the Withdrawal Bill a ‘power grab’ is perhaps somewhat naïve. Quite clearly, in devolving powers to Scotland, Wales and Northern Ireland, Westminster did not simply give up its powers to legislate on devolved matters. In fact, the absence of any legally binding statutory provision in the devolution Acts to prevent the UK from legislating on devolved matters, is of itself, a starkly ‘naked’ demonstration of the intention to retain this power.[15] Moving forward, the Withdrawal Bill will be subject to scrutiny by the Lords and sustained political pressure from the devolved powers. However, this constitutional conundrum presents itself as perhaps a wake-up call for the devolved powers. One could not be blamed for speculating that the devolved powers might look to review the constitutional arrangement with Westminster in the near future.


Conclusion

The UK government have argued that the competences should fall into the hands of Westminster after Brexit so that continued policy harmonisation can be achieved by allocating common standards and uniform frameworks.[16] It is hoped that this will ensure ‘stability and certainty’ to ‘protect the freedom of businesses to operate across the UK single market and to enable the UK to strike free trade deals with other countries’.[17] The ‘constitutional brinksmanship’ between Westminster, and Edinburgh and Cardiff is admittedly perhaps more than a mere power struggle.[18] There is much logic in the government’s response to the scrutiny and the constitutional issues at play are simply one side of the story. It remains to be seen which factor will tip the scale as the Withdrawal Bill progresses through both Houses. Ultimately, might sensibly agree that any Withdrawal Bill is better than no Bill at all, in guiding Brexit as it unfolds.


Tom Carr

Brexit Section Editor

6th February 2018


 

Image Source: https://assets3.parliament.uk/iv/main-large//ImageVault/Images/id_10269/scope_0/ImageVaultHandler.aspx.jpg

[1] European Union (Withdrawal) Bill (Explanatory Notes, HL Bill 79, 18/01/2018) [https://publications.parliament.uk/pa/bills/lbill/2017-2019/0079/18079.pdf]

[2] T. Carr, The ‘Great Repeal Bill’: White Paper – An Executive Power Grab? (Durham Pro Bono Society Blog, 16 April 2017) [http://durhamprobono.blogspot.co.uk/2017/04/the-great-repeal-bill-white-paper.html accessed 28 January 18]

[3] European Union (Withdrawal) Bill 2017-19 [https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html accessed 28 January 2018]

[4] J. Stone, Theresa May in 'naked power grab' over Brexit Repeal Bill, Scotland and Wales first ministers say, (The Independent, 13 July 2017) [http://www.independent.co.uk/news/uk/politics/brexit-great-repeal-bill-scotland-wales-carwyn-jones-nicola-sturgeon-theresa-may-legislative-consent-a7839706.html accessed 28 January 2018]

[5] European Union (Withdrawal) Bill (Explanatory Notes, HL Bill 79, 18/01/2018) Clause 11(1)-(3) [https://publications.parliament.uk/pa/bills/lbill/2017-2019/0079/18079.pdf]

[6] Ibid

[7] M. Elliott, ‘The EU (Withdrawal) Bill: Initial Thoughts’ (Public Law for Everyone, 14 July 2017) [https://publiclawforeveryone.com/2017/07/14/the-eu-withdrawal-bill-initial-thoughts/ accessed 28 January 2018]

[8] See Author Unnamed, ‘What's a Sewel Convention and why did it feature in the Brexit court ruling?’ (BBC News, 26 January 2017) [http://www.bbc.co.uk/news/uk-scotland-scotland-politics-38731693 accessed 28 January 2018

[9] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [151]

[10] ‘The EU (Withdrawal) Bill: Initial Thoughts’ (n2)

[11] J. Watts ‘Brexit: Wales and Scotland to launch challenge against Theresa May's bid for sweeping new powers’ (The Independent, 8 September 2018) [http://www.independent.co.uk/news/uk/politics/brexit-latest-theresa-may-withdrawal-bill-wales-scotland-challenge-power-grab-a7937041.html accessed 28 January 2018]

[12] M. Russel and J. Fitzpatrick, ‘Scottish EU Bill likely to be introduced in February’ (Scottish Government, 10 January 2018) [https://news.gov.scot/news/scottish-eu-bill-likely-to-be-introduced-in-february accessed 28 January 2018]

[13] Author Unnamed, ‘Brexit: EU withdrawal bill 'assault on devolution'’ (BBC News, 16 January 2018) [http://www.bbc.co.uk/news/uk-wales-politics-42703211 accessed 28 January 2018]

[14] Author Unnamed, ‘MSPs demand changes to EU Withdrawal Bill’ (BBC News, 23 January 2018) [http://www.bbc.co.uk/news/uk-scotland-scotland-politics-42773489 accessed 28 January 2018]

[15] Scotland Act 1998, Wales Act 1998, and the Northern Ireland Act 1998

[16] House of Commons Scottish Affairs Committee, ‘European Union (Withdrawal) Bill: Implications for devolution’ (HC 375, 14 November 2017) [https://publications.parliament.uk/pa/cm201719/cmselect/cmscotaf/375/375.pdf] p5

[17] Ibid

[18] ‘The EU (Withdrawal) Bill: Initial Thoughts’ (n3)



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.

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