Devolved legislatures and the EU

Jim Fitzpatrick drew our attention to an interesting possibility the other day:

(extract from Chapter 7 of The process of withdrawing from the European Union)

The key issue here is the competency of Westminster to amend the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Act 2006 (and 1998 to the extent that it is still in force) to remove the obligation to act within EU law without the consent of the relevant devolved legislature (interesting blog here.)

The answer as far as I can see, as someone who isn’t a lawyer, unlike Sir David England, is that there is nothing in any of the three Acts of Parliament requiring the devolved legislatures to agree to the amendment of their governing legislation.  In fact, Schedule 4 of the Scotland Act, Schedule 2 of the Northern Ireland Act and Schedule 7 of the Government of Wales Act specifically prevent the three legislatures from amending the relevant parts of the Acts.

Legislative consent, a device in the Standing Orders of the three legislatures rather than a statutory requirement, only applies where a matter has been devolved to the three legislatures.  As far as I can tell, if the legislatures have no power to amend the relevant provision of their governing Acts, they have no power to force Westminster to leave those provisions unamended.

So I went back to the Good Friday Agreement, where it is revealed that Strand One (the Assembly) does not mention compliance with European Union law at all – ECHR is of course referenced and enshrined, to the extent where the Agreement would have to be revised fundamentally for the UK Government to be able to apply a revised Bill of Rights to Northern Ireland, but the obligation to comply with EU laws is a matter for Strand 3, the British-Irish arrangements, and which are likely to come up as part of Brexit anyway, especially with the question of the competence of the Irish Government to have a travel treaty with a non-EU country.

In other words, the statutory obligation on the Assembly to comply with EU law is not actually part of the Good Friday Agreement, and cannot be blocked in that way.

Otherwise, it looks rather as though the reference to complying with EU law in the three Acts is just another one of those laws “imposed” by the EU (more strictly, to ensure that the devolved legislatures do not go against the UK’s international treaties), and therefore one to be disentangled on Brexit.

UPDATE: Thanks to comments below by chrisjone2 and Twilight of the Prods, I checked out the Memorandum of Understanding between the four legislatures and the related Devolution Guidance Notes.

The Guidance Notes do require legislative consent for proposed Bills which affect the legislative competence of the three devolved legislatures, however as Chris correctly points out, the only issue is the clause which requires them to conform with EU law (something I would suspect is also an obligation on Parliament, but I lack the patience to dig through the various European Communities and European Union Acts!) which is defined as “(a)all rights, powers, liabilities, obligations and restrictions created or arising by or under the Community Treaties; and (b)all remedies and procedures provided for by or under those Treaties.”

A literal reading of that suggests that the three Acts do not need to be amended as part of the initiation of Article 50 withdrawal, and may not need to be amended at all in the event of a free trade deal, because there will be continuing obligations under EU law – it’s just a matter of degree, and even in the absence of a free trade deal, the clause will be meaningless.

Legislative consent will almost certainly be required for the final treaty, but by that stage the horse will have bolted.

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  • chrisjones2

    Doh … read it again.

    It requires the Scottish Parliament to give effect to European Law. If we exit there is no European law to consent to

    The whole argument is waffle. Still it filled an hour on BBC news

  • AndyB

    Right enough, good spot. From the Interpretation:

    “Community law” means—
    (a)all rights, powers, liabilities, obligations and restrictions created or arising by or under the Community Treaties; and
    (b)all remedies and procedures provided for by or under those Treaties;

    So once the Article 50 notice expires, it’ll just be laws from whatever free trade treaties they come to, or at worst, exactly what you said – nothing.

  • Twilight of the Prods

    Bit more complicated than that.

    If you read around this, its not just about sticking to future EU law (which will still be made but not be incoporated by Westminster)

    A lot depends on how the Sewel convention enshrined in the 2016 Scotland act is interpreted: already devolved matters, or devolving competencies? Can Westminster stop the Scottish parliament from sticking to future EU law, and maintaining the EU law already in its Scottish statutes?

    …and like so much else these days, no one is entirely sure.

    Useful: https://www.ucl.ac.uk/constitution-unit/research/europe/briefing-papers/briefing-paper-3

    I’m sceptical that its a real ‘veto’ – but a complicating guerilla action, and headache for the Brexit government – it could well be that.

    If the Brexit government wants to keep Scotland in the Union it will have to be very mindful of this sort of stuff.

    It might not care so much. The real ‘Leave’ locus of support and legitimacy has been England. And more than half of England probably didnt give the brexit effect on the British Union any thought at all.

  • chrisjones2

    No the Scots can enact EU complaint laws ON DEVOLVED MATTERS if they want but they cant negotiate direct with a foreign power nor can they bind Scottish Courts to be subservient to the European Court and not the UK Supreme Court.

    That assumes of course that in the Proposed UK bill of rights Westminster doesn’t legislate to protect the rights of Scots from such nonsense

  • AndyB

    Thanks very much. I’m going to update the original post with some of the additional information you and Chris have drawn my attention to, because it does matter.

    I just need to read the Scottish MoU and the devolution guidance notes to check my conclusions.

  • Twilight of the Prods

    Quite correct.

    And of course parliament remains sovereign. But there is a lot of constitutional nuance and legal anomalies that could exist or pop up as things unfold. Westminster needs to take care not to wield that sovereignty like a sledge hammer.

    So why is Sturgeon suggesting all this about witholding legislative consent?

    1-Lots of EU law they may like
    2-Puts the EU on notice that Scotland would make a good future member
    3-Puts a future Brexit government on notice that Scotland needs to figure in negotiations and have its own voice
    4-Concentrates Westminster minds by complicating things and might slow the pace of things down. All in her governments interest as it works out whats best for Scotland
    5-Its another complication for the public to digest – in the wake of the economic shocks and party political turmoil we’ve just seen – again aims to slow things down
    6-Supplies another point of difference between Scotland and England – suits a narrative of nations growing apart. Some constitutional bickering would suit that.

    Not a veto but complicates, slows and gives a bit of leverage. Thats all necessary in their view.

    Very careful and considered woman that Sturgeon. Not going hell for leather for indyref2 – knows that Scots will feel very distanced from England and Wales – but also will be mindful of the question of the Euro,falling income from Scottish oil, a possible future border with England, and general economic uncertainty.

    Still, this isnt a union based on sentiment (history), or shared sense of common purpose (political culture, affiliation to GB parties) anymore.

    The inner narrative of scottish nationalist success seems to be that they arent ditching ‘Britishness’, so much as maintaining the old ‘British’ social democratic values that have radically altered south of the border.

    This legislative consent business plays to that too.

  • lizmcneill

    If Teresa May winds up as PM, can we expect the UK to withdraw from the ECHR? In that case, I doubt we have a devolved legislature any more.

  • Robert ian Wiliams

    The dvolved legislatures have no jurisdiction over international affairs. Mike Nesbitt on Sunday politics..He was closer to Sinn Fein , than Naomi Long. She stated that Stormont could not veto the Referendum, but Nesbitt thought it could. Really the UUP should dump Nesbitt or break up. That may well happen. What a disgrace to Unionism , he is. His sour grapes to Mrs Foster reminds me of Ted Heath and Maggie Thatcher. I disagree with Ms Long on abortion and lgbt, but I think she is by far the cleverest NI politician…Jim Allister excepted.

  • AndyB

    Clarification: other parts will have to be changed for the Final Treaty, as regards ECJ, but again that’s then and this is now.