How the UK and devolved governments can agree on the EU Withdrawal Bill

Background

Responding to the introduction of the European Union (Withdrawal) Bill by the United Kingdom Government on the 13 July 2017, First Minister of Scotland Nicola Sturgeon and First Minister of Wales Carwyn Jones issued a joint critical statement.

'The European Union (Withdrawal) Bill does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK government and Parliament, and imposes new restrictions on the Scottish Parliament and National Assembly for Wales.

Following a meeting in Edinburgh on the 22 August 2017 First Minister of Wales Carwyn Jones and First Minister of Scotland Nicola Sturgeon agreed to work together on amendments to the UK Government’s EU Withdrawal Bill.

The changes would be designed to protect devolved powers and responsibilities and provide effective powers to ensure devolved law works on withdrawal from the EU.

The First Ministers also committed to coordinate advice to the Scottish Parliament and Welsh Assembly to ensure that both were fully informed of the risks posed by the UK Government Bill and the proposed changes.

Damian Green, First Secretary of State and Minister for the Cabinet Office in the United Government and the Secretary of State for Wales Alun Cairns had meetings on the 4 September 2017 in Cardiff with the First Minister of Wales Carwyn Jones on arrangements under the EU (Withdrawal) Bill for distributing powers returned from the European Union.

Damian Green expressed confidence that progress could be made in talks with the Welsh Government on delivering a successful exit from the EU.

He said that there was a need to identify policy areas where common UK frameworks would be required as well as those areas that could be devolved to the devolved administrations.

The fifth meeting of the Joint Ministerial Committee (EU Negotiations) had taken place in London on the 16 October 2017 bringing together the UK government with the devolved administrations of Scotland, Wales and Northern Ireland.

United Kingdom First Secretary of State Damian Green met Welsh Secretary Alun Cairns and First Minister of Wales Carwyn Jones, along with Local Authority leaders on the 30 November 2017 in Cardiff to move discussions on Brexit forward.

The meeting was the latest in a series of talks between both governments to help determine where powers repatriated from the EU to the UK at the point of Brexit would sit in future. It followed a positive and constructive meeting between the three ministers on the 11 October 2017.

After the meeting First Secretary of State Damian Green MP said he was encouraged by the constructive nature of the latest round of Brexit talks with the Welsh First Minister in Cardiff.

In a separate statement First Minister Carwyn Jones said that both sides recognised that progress had been made since the last meeting. A detailed discussion about future frameworks was positive and demonstrated a developing and serious attempt to resolve differences.

There were clearly still obstacles to overcome before the Welsh Government could recommend supporting the Withdrawal Bill, and it was acknowledged that there were opportunities for the UK government to make changes to the proposed legislation as it passed through Parliament.

6th meeting of the Joint Ministerial Committee (EU Negotiations), London, 12 December 2017: Governments agree a way forward on EU powers

The 6th meeting of the Joint Ministerial Committee (EU Negotiations), took place in London on the 12 December 2017, bringing together the United Kingdom government with the devolved administrations of Scotland, Wales and Northern Ireland.

After the meeting the UK Government reported that the devolved administrations and the government had made further progress in determining where common frameworks would and would not be required. It was agreed how 142 current EU policy areas would be dealt with as they returned to the UK, with only a minority requiring a legislative framework.

There was now agreement in principle on how the 142 policy areas previously identified would be allocated into the following three groups:

+ areas where no further action was necessary
+ areas that could require new non-legislative arrangements
+ areas that might require a legislative framework

Only in a minority of areas would a legislative framework be required and officials would now carry out further work in these policy areas.

After the meeting, Mark Drakeford, Cabinet Secretary for Finance representing the Welsh Government said 'the Welsh Government cannot recommend that the National Assembly gives legislative consent to the EU (Withdrawal) Bill unless issues surrounding the devolved powers of the Welsh Government and National Assembly for Wales are resolved in amendments which should be agreed before the Bill leaves the House of Commons. The UK Government agreed there should be further specific discussion at official level around potential solutions'.

The Welsh Government had previously said if the European Union (Withdrawal) Bill left the House of Commons without being amended, it would be unable to recommend that the Assembly granted its legislative consent and would consider introducing a Continuity Bill.

The Continuity Bill would transpose EU law that fell within the Assembly’s competence into Welsh law. It would safeguard the Welsh Government’s power over the areas where EU law and devolved competence intersect and seek to retain EU legislation in devolved policy areas. The UK Government accepted that, in transposing EU law into domestic law, the Withdrawal Bill affected devolved matters and that the Assembly’s consent was needed.

Similar comments were made by the Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell MSP.

First Minister of Wales Carwyn Jones described the proposed law in its current form on the 16 January 2018 as 'a fundamental assault on devolution' and threatened to introduce a so-called Continuity Bill to protect Welsh interests before the end of January 2018 unless the 'necessary amendments' were made.

Steffan Lewis, Plaid Cymru AM for South Wales East, moved a Members’ Legislative Proposal in the National Assembly for Wales on the 17 January 2018 that called for a Continuity Bill. Assembly Members (AMs) unanimously backed the Plaid Cymru motion.

The Chancellor of the Duchy of Lancaster David Lidington MP held a bilateral discussion in Cardiff on the 1 February 2018 wth the First Minister of Wales Carwyn Jones AM on the UK’s preparations for leaving the EU. Also attending were the Welsh Secretary Alun Cairns MP and Welsh Government Minister Mark Drakeford AM.

Mr Lidington said the talks were helpful and thanked the Welsh Government for their constructive efforts in trying to find an agreed way forward in relation to the EU Withdrawal Bill that was currently going through the UK Parliament.

Mr Lidington also held related meetings with the Scottish Deputy First Minister on the 1 February 2018. Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell said that the Scottish Government was 'becoming increasingly exasperated by the UK Government’s approach. ... The UK Government must make changes to address these concerns'.

Ahead of the UK Government Cabinet Sub-Committee on EU Exit Negotiations on the 7 and 8 February 2018 the First Minister of Scotland Nicola Sturgeon wrote to the Prime Minister Theresa May to say the Scottish Government and other Devolved Administrations must be able to influence the UK’s negotiating objectives.

Chancellor of the Duchy of Lancaster David Lidington MP was due to give a speech as part of the UK government's Road to Brexit series of speeches in mid-February 2018 in a further effort to deal with devolved competences issues.
The author wrote that the United Kingdom and the devolved governments appeared in February 2018 to be edging towards agreement on the EU Withdrawal Bill. But a deal hinged on both sides making significant concessions.

UCL: The Constitution Unit: Blog, 20.02.18: How the UK and devolved governments can agree on the European Union (Withdrawal) Bill https://constitution-unit.com/2018/02/20/how-the-uk-and-devolved-governments-can-agree-on-the-european-union-withdrawal-bill/

ESO: In Focus: Brexit - The United Kingdom and the European Union http://www.europeansources.info/record/brexit-the-united-kingdom-and-the-european-union/

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