Recently, an article in TuS entitled ‘Devolution – and the UK’s territorial constitution – is being reshaped’ discussed the impact on the UK’s ‘territorial constitution’ of the United Kingdom Internal Market Act 2020. It argued that serious changes to the devolution settlement had been imposed by Westminster whilst Scotland’s parliament, government and voters spectate, without agency!
There is more coming! Lurking behind the dry sounding title of another Bill before the Westminster parliament is yet another threat to the devolution settlement: the Retained EU Law (Revocation and Reform) Bill 2022-23. On 17 October, the House of Commons Library (HoCL) published a briefing on the nature of this Bill, including its significance for and reactions to it from the governments in Cardiff and Edinburgh.
According to the HoCL, passage of this Bill to ‘revocate and reform’ would: ‘… completely overhaul a body of UK domestic law known as “retained EU law” (REUL). That body of law was created by the EU (Withdrawal) Act 2018 (EUWA) as amended by the EU (Withdrawal Agreement) Act 2020 (EUWAA) and came into existence at the end of the post-Brexit transition period (ie the end of 2020).’
The HoCL briefing goes into detail about the purpose, scope and likely usage and effects of the Bill once enacted. It also notes certain concerns: ‘This Bill would enable far more decisions about the content of REUL to be taken by the UK and devolved executives, rather than by legislatures. Moreover, to the extent legislatures are still involved, those decisions would be taken with less oversight than there is at the moment. Organisations including the Hansard Society and Public Law Project have expressed concerns about Parliament being marginalised.’ (my emphasis)
In short, this Bill is laying the legislative foundation for advancing the Brexit agenda of deregulation across the UK and will enable this with less parliamentary oversight in Westminster.
The House of Lords Crossbench peer Lord (David) Anderson KC is quoted: ‘The constitutional concern, which I can confidently predict, will dwarf all others, is going to be clause 15 and the powers to revoke and replace laws arrived at by the democratic processes of the EU… with statutory instruments issued by government. That will hit a very painful nerve indeed.’
Reaction of the Welsh Government
The HoCL briefing reports that: ‘The Welsh Government has yet to publish a legislative consent memorandum for the Senedd Cymru.’ It provides a link to the statement made (23 September 2022) by the Welsh Government (https://gov.wales/power-grab-fears-over-new-uk-government-legislation): ‘As currently drafted, this legislation could see UK government ministers given unfettered authority to legislate in devolved areas – contrary to the democratically established devolution settlement.
‘It also risks the reduction of standards in important areas including employment, health and the environment.
And adds: ’We are disappointed the bill has reached this stage with such little engagement with the Welsh Government about its most important aspects, and we call on the UK government to bring about the legislative changes that will ensure Wales’ constitutional integrity and devolution settlement is respected and preserved.’
The letter sent from Mick Antoniw, Counsel General and Minister for the Constitution in the Welsh Government to Secretary of State for Business, Energy and Industrial Strategy, Jacob Rees-Mogg is here: https://gov.wales/sites/default/files/inline-documents/2022-09/cgmc-letter-to-secretary-of-state-for-business-energy-and-industrial-strategy.pdf. It includes the following statements:
‘I have previously made the point, and this has been reiterated by officials, that the starting point should be that any powers to amend retained EU law (REUL) in areas of devolved competence should reside with the Welsh Minsters, with any powers held concurrently in such areas to be drafted to include a requirement for Ministers of the Crown to obtain the consent of the Welsh Ministers before they are exercised.’
‘Any power that could see the UK Government legislating in devolved areas without the consent of the Welsh Ministers would be entirely unacceptable, both to the Welsh Government and to the Senedd.’
Also: ‘… the UK Government must not seek to sunset legislation made by the Senedd. I also want to highlight the very considerable concerns we have regarding a sunsetting date of the end of 2023. This will place an entirely unnecessary and enormous burden on Devolved Governments to revisit this body of law at a time when the focus should be on far more important issues.’
Reaction of the Scottish Government
The HoCL briefing reports that the Scottish Government has yet to publish a legislative consent memorandum for the Scottish Parliament. Angus Robertson MSP, Cabinet Secretary for the Constitution, External Affairs and Culture wrote to Jacob Rees-Mogg on 22 September 2022 (https://www.gov.scot/publications/retained-eu-law-bill-letter-to-the-uk-government/ ):
‘I am writing to express again my deep concern and the fundamental opposition of Scottish Ministers to the Retained EU Law (Reform and Revocation) Bill, introduced today by the UK Government. This bill puts at risk the high standards people in Scotland have rightly come to expect from EU membership. You appear to want to row back 47 years of protections in a rush to impose a deregulated, race to the bottom, society and economy.’
‘This bill also represents a significant further undermining of devolution. By allowing UK Government ministers to act in policy areas that are devolved, and to do so without the consent of Scottish Ministers or the Scottish Parliament, is in direct contradiction to devolution and, in particular, the Sewel convention which was given statutory footing in the Scotland Act 1998, in 2016. The speed at which the legislation is being pursued – no impact assessment or basic evaluation has been shared with my officials – is nothing short of reckless, compounding the recklessness of the propositions themselves.’
Robertson goes into some detail regarding areas at risk from deregulation enabled by this Bill if enacted, including but not limited to: food labelling; holiday pay, safe limits on working hours and parental leave; health and welfare of humans and animals; GMO food and feed being placed on the UK market without food safety assessment taking place, nor any obligation to label such food for consumers etc.
Robertson adds: ‘I consider it unacceptable that we have had no advance sight of the most controversial clauses of the bill up until a few hours before today’s introduction, mirroring the disappointing UK Government approach to engagement ahead of the introduction of the Northern Ireland Protocol Bill and much of the Brexit related legislation.
‘The sunset dates in the legislation would force the Scottish Parliament and Government to reconsider, review and legislate unnecessarily over much legislation which is supposed to be clearly devolved. This work will badly disrupt the Scottish Parliament’s legislative timetable. The Parliament and Government will find themselves consumed with unnecessary work to save important legislative provisions from being lost’.
The Labour Welsh Government and the SNP Scottish Government – with quite different views on the merits of the Union – are of similar mind on this Bill. It is yet another step to undermine the democratically determined devolution settlement by a party of government, the Tory Party, that majorities in Wales and Scotland reject.
How would a future Labour government in Westminster deal with these matters? And would it repeal the existing United Kingdom Internal Market Act 2020? We don’t know! And so, firstly, we in Scotland will have to wait around to see if England’s electorate votes for Labour in sufficient numbers at the next General Election. And secondly, we in Scotland will have to wait to see what a new Labour government decides to do, when.
And that’s the problem with absence of agency: far too much waiting, far too much spectating; far too much dependency on the political decisions and actions of others!