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.