Short briefing paper on Brexit legislation and devolution in Wales
On 17 October 2019, a revised Withdrawal Agreement was published, to allow the UK to leave the EU, together with a political declaration regarding negotiating intentions for the future UK-EU relationship, and arrangements for obtaining the consent of the Northern Ireland Assembly for special arrangements for that province. On 19 October, the House of Commons resolved to postpone ratification of the Agreement until the European Union (Withdrawal Agreement) Bill is passed. This Bill was laid before the House on 21 October, and passed its Second Reading (agreement in principle) on 22 October. The Bill will be lost when Parliament is dissolved for the General Election, but if the Conservative Party win that election it is expected to be reintroduced with the intention that it be passed in time to allow departure from the European Union on 31 January 2020. An explanation of the legislative process can be read here.
This new Agreement is similar in many ways to the previous Agreement which failed to receive Parliamentary approval when Theresa May was Prime Minister, but drawn up this time on the basis that the future relationship between the UK and the EU will be based on a Free Trade Agreement and a series of other agreements in areas such as security and policing, higher education and research, co-operation regarding nuclear power, etc., rather than on the basis of a single “deep and special partnership” as suggested by Mrs May’s Government.
The difference which has attracted most attention is treating Ireland as a whole (the North and the Republic) as a single regulatory zone for food, drink, animals and goods, and creating an administrative customs border between the island and the remainder of the UK. This will have significant practical implications for the ports of Holyhead, Pembroke Dock, Fishguard and Swansea with regard to sailings between them and Ireland. The ports are devolved to the Welsh Government, and the First Minister of Wales, Mark Drakeford, said on Sunday Politics Wales on 20 October that the Government is working on this, but that this is difficult due to the UK Government’s sudden policy change in this matter. The delay in departure until 31 January 2020 will give some greater opportunity to put arrangements in place.
The Bill includes powers for Welsh Government to implement the Withdrawal Agreement in devolved policy areas, and a number of its clauses require Legislative consent from the Welsh Assembly. (A full list of these clauses can be found on pages 118-199 of the UK Government’s Explanatory Notes on the Bill). There has so far not been time to table a formal Legislative Consent Motion before the Assembly, but the Assembly on October 22 voted by 37-16 not to consent to the Bill in its current form. Even if no legislative consent is forthcoming, Westminster could enact the Bill – as was done in the case of the European Union (Withdrawal) Act 2018 when the Scottish Parliament failed to consent.
When the Westminster Parliament was prorogued on 8 October, a number of other laws essential for securing full legal arrangements for the UK following exit from the EU. Amongst these was the Agriculture Bill and the Fisheries Bill, which included powers needed by Welsh Ministers to administer these areas until the National Assembly for Wales can pass Welsh legislation. If the Withdrawal Agreement is in due course ratified at Westminster, there will be an Implementation (or Transition) Period until December 2020 which would give the opportunity to pass this legislation, although scrutiny time would be constricted for such complex and important legislation. It would be possible, by mutual agreement between the UK and the EU by July 2020, to extend this Period until December 2021 or December 2022.
Should this legislation not be passed in its entirety prior to exit day, it is not clear how the Welsh Government could proceed without the necessary powers in these areas. There is a significant risk that the Welsh Government and/or the UK Government might have to operate swiftly using secondary legislation under the European Union (Withdrawal) Act 2018. Accelerated secondary legislation receives little parliamentary scrutiny, and parliamentary amendment is impossible. If secondary legislation regarding devolved matters is made in Westminster, the Assembly will have no opportunity at all to scrutinise it.
Also lost at prorogation was the Trade Bill, which was at its final stage in Westminster. It would have given Westminster scrutiny powers and guaranteed consultation with Welsh Government regarding matters – some devolved – which might be affected by EU trade agreements which will be ‘rolled over’ to relate also to the United Kingdom following exit. It is understood that it is not intended to reintroduce this Bill and that these agreements will instead be ratified by the UK Government using the Royal Prerogative. Westminster’s ability to scrutinise use of these powers is very limited, and the Assembly has no such ability. It appears also that there may be an intention to negotiate and ratify wholly new trade agreements, which would almost certainly affect devolved matters, using prerogative powers.
In the brief session of the Westminster Parliament which began on October 14, an Environment Bill was introduced for the first time. This includes new arrangements for environmental regulation in the UK, including Wales. The Bill is complex, interweaving clauses relating to devolved matters with those that do not. The Assembly will need to consent to this Bill, but the principal debates will be held in Westminster. This Bill will also be lost with the dissolution of Parliament prior to the General Election. It is expected that Welsh Government will introduce specific Welsh legislation in due course. Until Welsh legislation is passed, this Westminster Bill will also be essential for Welsh Government to operate after leaving the European Union.
Gethin Rhys, Policy Officer 31.10.2019