The European Union (Withdrawal) Bill falls short for Wales

Auriol Miller sets out the IWA’s response to the EU (Withdrawal) Bill, which is having its second reading in the House of Commons today






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Living in the UK there are many things that you take for granted – at one end of the scale our British weather and its impact, and our need to talk about it, are firmly embedded in our psyche as a nation.  At the other end of the scale, living in a parliamentary democracy provides a bedrock that underpins our day to day lives in ways that most of us don’t feel the need to discuss on a daily basis.  It just is.  Opportunities to challenge, debate and scrutinise are known and available to politicians, grassroots activists, campaigners, policy specialists alike.  Our unwritten constitution has survived thus far and the changes brought by the devolution process – while still contested and argued over – are now part of our constitutional landscape too.

The European Union (Withdrawal) Bill changes that landscape and fairly dramatically too.

At the IWA, our Governance Policy Group has been looking at it in detail.  As a politically independent think-tank, our only interest is in seeing Wales flourish as a country in which to work and live. For that to happen, people who live and work in Wales need certainty as much as those living in any other part of the UK.  Party politics don’t come into it for us – what matters is trying to up the ante – to be more strategic and less piecemeal in our approach to the changing nature of the UK and the relationship between its four nations.

The EU (Withdrawal) Bill represents an opportunity to widen and reinforce devolution that has not been taken.  Only now is the extent of the legislative challenge ahead being perceived.  Of course it is in no-one’s interest for a Withdrawal Bill not to be enacted and provide the legal safety net when the UK leaves the jurisdiction of EU law.   But what this Bill does is roll back devolution, press a massive pause button, and say to the devolved legislatures in Northern Ireland, Scotland and Wales – hang on, let’s gather those powers back in while we sort out this mess. Don’t worry, you’ll get them back again soon.  You can trust us.

It could have been so different. We could have had a bill that developed a strategic approach, recognising devolution as a strong feature of the UK, and strengthened (not weakened) relations between the four nations.  As it is, this Bill can legitimately be viewed as a threat to the stability of the union.  We had uncertainty even before Brexit, with the changing powers of the Wales Act 2017 coming into force next April. Coupled with the now uncertain foundations of retained EU law and the effective freeze on devolved power proposed through this Bill, we are increasingly concerned about the ability of the Welsh Government and the Assembly to exercise their right to act in Wales’ best interests.

Yes, common frameworks are needed to replace EU frameworks in some areas that are presently devolved – agriculture, the environment and fisheries for instance.  But it cannot be right for the UK Government to decide any new policy regime across the UK for matters that are not reserved when it is the de facto Government of England too.  Our interests won’t always align.  We know that already.  How will the UK Government distinguish common interests from the narrower ones of England?  There is no recognition of this in the Bill.  Any durable solutions need the consent of all the nations.

On the technicalities, there’s an intent to work with the devolved administrations to identify areas of retained law where no pan-UK approach is deemed necessary – see section 36.  But it’s the UK Government which will decide on the content of Orders in Council and this is unsatisfactory.  New mechanisms are needed to develop consensus and garner consent of all the nations so that meaningful positive scrutiny during policy development can take place.  This is urgent.  Effective and meaningful engagement with the devolved nations means just that.

Schedule 3 deals with the current devolution settlements. The Bill’s explanatory notes (see para 195) state that it has been published in an incomplete form and will need to be amended as it passes through Parliament.  Our position is clear.  Not only is it unsatisfactory that the Schedule is incomplete in the first place.  It is also wholly unsatisfactory that the details relating to devolution are in Schedules that are unlikely to have the same full parliamentary scrutiny as the main clauses of the Bill.  Parliament and the devolved legislatures should examine the Schedule jointly, and swiftly, so that their input can positively influence the provisions of the Bill.

Coming to oversight.  The proposed arrangements for parliamentary oversight are inadequate.  We accept that the UK exiting the EU presents a unique challenge, and that the speed and flexibility required to deal with the volume of the task ahead, combined with a tight deadline, are a looming challenge of almost unthinkable proportion. However the broad powers given to Ministers and the lack of control exercisable by Parliament with regards to delegated legislation created under this Bill risks unbalancing the power dynamic between the executive and legislative. This presents a key constitutional concern.

The key challenge is between timely decision making and effective scrutiny. Scrutiny is itself under scrutiny – current arrangements in the House of Commons have been known to be unsatisfactory for some time. See the recent Hansard Society report for more on this and their suggestions.

What’s been getting the headlines are the delegated powers conferred on UK Government Ministers within the Bill which are broad and substantial (see Clause 7(1) and 7(4)).  If it is possible for regulations made under this Bill to do anything that could be done by an Act of Parliament, then that must also extend to amending or repealing any kind of law, including provisions in other Acts of Parliament.  What is there in this Bill to prevent these powers being used in ways which further impact on devolved policy areas?

To avoid doubt, we don’t think that these so-called ‘Henry VIII’ powers should be conferred on Welsh Government Ministers either.  It would be unsatisfactory to see this replicated in Wales, without corresponding action to rebalance the scrutiny mechanisms in Wales.  The National Assembly for Wales should be responsible for legislation and only delegate powers to Welsh Ministers where it considers it appropriate.

What is also trying is the tension between the legal purpose of these broad power and the uncertain political negotiations that are ongoing. Whether any retained EU law can be said to ‘operate effectively’ is not clearly defined and is left open to interpretation.  We won’t be able to pin down the appropriateness of retained EU law, and therefore whether these delegated powers are used effectively, until the terms on which we leave the EU are known. The fundamental question is how far is it possible to exercise delegated powers effectively in advance of the UK leaving the EU?

It is our firm view that the National Assembly for Wales Committees should seek urgent, focussed dialogue with Commons and Lords Committees on the Bill and establish formal and ongoing liaison mechanisms to support effective scrutiny of it and the delegated legislation made under it.  These should not depend on the goodwill of individuals involved.  It is time to put aside any possible or perceived tensions between Westminster and Cardiff Bay.  Politicians and officials need to work together to ensure that regulations presented to both Parliament and the National Assembly are more likely to secure approval from both legislatures.

The people of Wales deserve better from this Bill.  Transparent and robust scrutiny will help guide it through the stormy weather ahead.

Auriol Miller is Director of the IWA