At the end of March, the UK government published its white paper setting out how it will find a solution to some fundamental post-Brexit constitutional issues through the Great Repeal Bill. It aims to create stability and clarity by ensuring that the law on the day after Brexit will be the same as the day before. However, Dr Huw Pritchard and Manon George explain how important details, especially regarding the role of devolved institutions, require much more reading between the lines.
The Bill will repeal the European Communities Act 1972 and convert EU law into UK law to avoid any gaps following Brexit. It will also establish delegated powers so that secondary legislation can be made to amend laws and policies which are redundant or require changing after leaving the EU.
However, the simplicity of the plan shrouds the complexity of EU law within the UK.
It is estimated that there are around 19,000 EU legislative acts in force. Some are directly applicable EU laws and others have been implemented in the UK through statutory instruments, including some implemented separately by devolved administrations.
Following Brexit, some EU provisions will need to be ‘corrected’ as they may no longer be necessary or operate in the same way outside the EU. The UK government intends to rectify these through wide delegated powers so that it has the flexibility to amend existing primary and secondary legislation, and directly applicable EU laws which will be converted into UK Law, as negotiations develop.
An obvious example of a provision that will need correcting is in the Government of Wales Act 2006. It requires Welsh Acts to comply with EU obligations, a requirement which will become redundant following withdrawal from the EU. The UK government has indicated that such references would be corrected by the UK government itself, but makes no direct reference to the devolution legislation on this point.
It would be unpalatable to allow the UK government, rather than the UK parliament, to amend the competence of the devolved legislatures. However, if the change is made through primary legislation then it is arguable that it will need the legislative consent of the devolved parliaments. Making such changes through secondary legislation would avoid that requirement.
To complicate matters, Wales is currently in between two devolution dispensations – the Wales Act 2017 introduces a reserved powers model and is due to come into force in April 2018 so this Act will also need amending.
The white paper proposes that the Great Repeal Bill gives the devolved ministers a power to amend devolved legislation. This is partly in line with Theresa May’s promise that no decisions currently made by devolved administrations will be removed. This may be significant in fields such as agriculture, environment, and transport where devolved administrations have direct responsibilities in implementing EU law domestically. However, it is not entirely clear what the scope of this power would mean for Wales.
For example, ‘devolved legislation’ may imply that Welsh ministers may only amend laws which it, or the National Assembly, has passed. However, there are also EU laws made by the UK government and parliament in devolved areas. It is not clear whether Welsh ministers, or the National Assembly, will be able to influence the process of amending those provisions.
The vast use of delegated legislation and the speed they will need to be passed also brings into doubt the level of parliamentary scrutiny. There is also no indication of any role for the National Assembly for scrutinising how EU laws are converted. For example, if Welsh ministers are given powers to amend substantial amounts of secondary legislation, it will have a knock-on effect on the National Assembly’s timeframe for scrutiny.
The white paper suggests that further primary legislation will be required after the Great Repeal Bill such as a Customs Bill and Immigration Bill, where parliament would get direct approval in passing this legislation. It is silent however, as to whether a legislative consent motion from the devolved parliaments would be required as part of that process if those Bills change competence in devolved areas such as agriculture or the environment.
Another issue which may impede the scope of Welsh ministers to act is that the UK government wants to protect the UK single market so that stability and certainty are retained within the UK. This will require common UK frameworks, which replicate the current EU frameworks, through UK legislation. The UK government commit to begin ‘intensive discussions’ with devolved administrations to identify where common frameworks are necessary or not so that it ‘works for the whole and each part of the UK.’
The UK Government expects that there will be a ‘significant increase in the decision making power of each devolved administration’ as part of this process. But this could depend on the interpretation of the devolved administrations’ current ‘decision making’ power.
For example, agriculture is often regarded as ‘fully devolved’ by devolved administrations, but it works within EU frameworks. It is therefore contestable whether decisions made as a result of EU obligations are full decision making powers.
This will be significant when determining the breadth and rigidity of any UK common frameworks seeking to replace EU frameworks.
Until we have a clearer idea of these ‘common UK frameworks’ and what restrictions will be on the law-making and decision making powers of the devolved institutions, it is difficult to determine how converting EU laws into UK law will affect the devolution settlement.
Dr Huw Pritchard and Manon George are members of the Wales Governance Centre and lecturers in Cardiff School of Law and Politics.
This post represents the views of the author and neither those of the Welsh Brexit blog, nor Cardiff University.