Legislating for withdrawal from the European Union – where are we now?

Preparing the statute book for leaving the European Union

Both the UK and Scottish Governments have passed legislation ahead of the UK’s departure from the EU so that the statute book operates in a way which ensures a seamless transition on Exit Day.

This blog outlines progress relevant to the Scottish Parliament on the European Union (Withdrawal) Act and the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

The European Union (Withdrawal) Bill

On 26 June, the European Union (Withdrawal) Bill received Royal Assent and became an Act.

The Withdrawal Act prepares the UK statute book for withdrawal from the EU by saving EU-derived domestic law and converting other EU law into domestic law, and providing powers to correct that law so that it operates effectively when the UK leaves the EU.

The UK Government sought legislative consent for the Withdrawal Bill as introduced in relation to a number of provisions in the Bill including: 

  • Clause 11 (Section 12 in the Act) which related to the competences of the Scottish Parliament
  • Clauses 7 (Section 8 in the Act) and Schedule 2 which gave powers to UK and Scottish Ministers to address deficiencies in retained EU legislation.

The first part of this blog concentrates on Clause 11 (Section 12 in the Act).

The original devolution provisions in the Withdrawal Act

In the absence of any amendment to the Scotland Act 1998, after Brexit, additional powers in areas, which had previously been EU competences (for example in agriculture, fisheries and environment) would be devolved to Scotland in line with the scheme in Schedule 5 of the Scotland Act 1998.

The UK Government’s view was that this would make it harder for the UK single market to function effectively, and for the UK to strike new trade deals as a result. The Bill, as introduced, proposed amending the Scotland Act 1998 to maintain the EU law limitation on the Scottish Parliament’s legislative competence on a temporary basis. It did so by providing that the Scottish Parliament may not legislate in a way which modifies ‘retained EU law’, subject to competences being released to the Scottish Parliament over time once they were considered appropriate for modification by the devolved legislatures.

The original proposals set out in the original clause 11 of the Withdrawal Bill were objected to by the Scottish Government and the Scottish Parliament’s Finance and Constitution Committee.

The amended devolution provisions in the Withdrawal Bill

Following months of negotiations between the UK Government and the Devolved Administrations, the UK Government introduced amendments to the Bill in the House of Lords in May 2018.

The amendments proposed by the UK Government to clause 11 (note it had become clause 15 in the amended withdrawal bill and is now Section 12 of the Withdrawal Act), removed the general reservation relating to retained EU law, and instead provided UK Ministers with powers to specify in regulations (by statutory instrument) the parts of retained EU law they wanted to protect from modification by devolved legislatures pending a new common framework to regulate the UK internal market being agreed. The powers are contained in new section 30A of the Scotland Act 1998, as inserted by Section 12 of the Withdrawal Act. The reservation set out in each set of regulations was time limited to five years after it has come into force whilst the power provided to UK Ministers to make such regulations was time limited to two years after Brexit day. 

The amendments also provided for the Scottish Parliament to be given the opportunity to make a ‘consent decision’ in relation to each set of regulations. New section 30A sets out what a consent decision of the Scottish Parliament means:

For the purposes of subsection (3) a consent decision is—
(a) a decision to agree a motion consenting to the laying of the draft,
(b) a decision not to agree a motion consenting to the laying of the draft, or
(c) a decision to agree a motion refusing to consent to the laying of the draft;

and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).

The UK Government also published a draft (non-legislative) intergovernmental agreement in which it set out the areas where it believes that EU law should be temporarily preserved pending the development of legislative common frameworks.

The intergovernmental agreement also addresses the question of devolved legislatures consent for the regulations stating:

“The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures. The UK Government commits to make regulations through a collaborative process and in accordance with this agreement and the Devolved Administrations commit not to unreasonably withhold recommendations of consent. In the absence of the consent of the devolved legislatures, UK Ministers will be required to make an explanatory written statement to the UK Parliament if a decision is taken to proceed. This will be accompanied by any statement from the relevant devolved Ministers on why, in their view, the consent of their legislature has not been provided.“

The Withdrawal Bill amendments and the intergovernmental agreement had been agreed by the Welsh Government (with the Welsh Assembly subsequently giving legislative consent) but the Scottish Government indicated it was still unable to recommend that the Scottish Parliament provided legislative consent for the Bill. As a result, on 15 May 2018, the Scottish Parliament withheld consent for the EU Withdrawal Bill by 93 votes to 30.

Despite the lack of legislative consent from the Scottish Parliament, the Withdrawal Act has been passed with Section 12 included.

Powers for Scottish Ministers in the Withdrawal Act

The Withdrawal Act, provides powers for Scottish Ministers to address deficiencies in retained EU law in devolved areas. UK Ministers have powers to address deficiencies for Scotland across devolved and reserved areas. UK Ministers have stated that they would not normally use their powers in devolved areas without the agreement of the Scottish Ministers.

Scottish Parliament and Scottish Government officials are working on a protocol which will provide a mechanism for the Scottish Parliament to scrutinise proposals by the Scottish Ministers to agree to UK regulations in devolved areas.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

Following disagreement between the UK and Scottish Governments over the content of the Withdrawal Bill, on 27 February 2018, the Scottish Government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill mirrors to some extent the UK Government’s European Union (Withdrawal) Act. This is perhaps unsurprising since both pieces of legislation set out to achieve the same effect – providing continuity of law on the day the UK leaves the European Union. (The Scottish Government has also argued that adopting a similar approach to the Withdrawal Act means there should be consistency between the way Scots devolved and reserved law is dealt with.)

The Continuity Bill provides powers for Scottish Ministers to address deficiencies in devolved retained EU law, so far as that would be within the legislative competence of the Scottish Parliament.

There are some significant differences between the Withdrawal Act and the Continuity Bill, for example in relation to the Charter of Fundamental Rights, and rules of interpretation such as the status of judgements of the ECJ. The other main difference is the ‘keep pace’ power in the Continuity Bill.

Upon receiving Royal Assent, the Withdrawal Act became a ‘protected enactment’ under Schedule 4 of the Scotland Act. This means that Acts of the Scottish Parliament cannot modify it.

A further implication of the timing of Royal Assent for the Withdrawal Act, concerns Section 17 of the Continuity Bill. Section 17 provides that UK subordinate legislation which modifies or affects retained devolved EU law is of no effect unless the consent of the Scottish Ministers has been obtained before it is made. The provision is prospective – it only affects legislation made under an Act passed after the Continuity Bill comes into force. As a result, if Section 17 of the Continuity Bill is enacted it would not require consent for subordinate legislation made by UK Ministers exercising powers under the Withdrawal Act.

What happens now?

During the 4 week period after the Continuity Bill’s passing, the UK Government announced that the Advocate General for Scotland had referred the Bill to the Supreme Court under section 33 of the Scotland Act. Referring the Bill to the Supreme Court, the UK Government has asked for a ruling on whether the legislation is within the Scottish Parliament’s legislative competence. This will include considering the extent to which the Continuity Bill would modify the European Union (Withdrawal) Act.

The UK Supreme Court will hear the case on 24 and 25 July. The Supreme Court Justices who will hear the case (Lady Hale, Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge, Lord Lloyd-Jones) could make one of the following decisions:

  • Rule that all provisions within the Continuity Bill are within the competence of the Scottish Parliament clearing the Bill to go forward for Royal Assent.
  • Rule that some provisions within the Continuity Bill are outwith the competence of the Scottish Parliament and refer the Bill back to the Scottish Parliament for reconsideration. The Presiding Officer cannot submit the Bill for Royal Assent unless amended. If amended, there will be a further 4 week period within which Law Officers can refer the Bill to the Supreme Court.
  • Rule that the Continuity Bill as a whole is outwith the legislative competence of the Scottish Parliament. The Bill could still be reconsidered by the Parliament. As before however, the Presiding Officer cannot submit the Bill for Royal Assent unless amended, and there will be a further 4-week period for reference of the amended Bill to the Supreme Court.

Iain McIver, SPICe Research