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Legislative Consent and the European Union (Withdrawal) Bill (2017-19): the Joint Ministerial Committee, proposed amendments, and the "Continuity Bills"

Published Thursday, March 29, 2018

An overview of the attempts of the Joint Ministerial Committee on European Negotiations to agree changes to the European Union (Withdrawal) Bill to gain legislative consent from the Scottish Parliament and National Assembly for Wales.

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The UK Government introduced its European Union (Withdrawal) Bill (2017-19) (EUW Bill) on 13 July 2017. As introduced, the Bill makes significant changes to the legislative and executive competencies of devolved institutions.

The Scottish and Welsh Governments oppose the Bill as it was introduced. Each lodged a legislative consent memorandum to their respective devolved legislatures. There were four main categories of concern about the effect the EUW Bill would have on the devolution settlements. In particular they opposed:

  • the imposition of a new competence constraint on devolved legislatures not to “modify retained EU law”;
  • the imposition of certain constraints on the delegated powers of devolved Ministers that are not imposed on UK Ministers;
  • the absence of a consent requirement before UK Government Ministers could use delegated powers under the Bill to modify the devolution statutes; and
  • the absence of a consent requirement before UK Government Ministers could use delegated powers under the Bill in relation to devolved matters.

The preliminary view of both Governments was that neither the Scottish Parliament nor the National Assembly for Wales should grant legislative consent for the EUW Bill. The Scottish and Welsh Government published a series of amendments they wished to make to the Bill. If those (or equivalent) amendments were accepted, they said, they would revisit their preliminary recommendation.

This paper provides a summary of the intergovernmental and legislative developments in relation to this ongoing dispute. It explains what progress has been made in attempts to find agreement on the clauses in the EUW Bill about which the UK and devolved Governments disagree. It addresses:

  • the reasons for disagreement about the appropriateness of the EUW Bill in relation to devolution;
  • the discussions that have taken place in the Joint Ministerial Committee for European Negotiations (JMC (EN)) on clause 11 and future common frameworks;
  • proposed amendments to the EUW Bill recommended by the Scottish and Welsh Governments as a condition for recommending legislative consent;
  • Lords amendments moved, debated and withdrawn by the UK Government to amend clause 11 in the absence of devolved agreement; and
  • the two “Continuity Bills” that completed their legislative stages in the Scottish Parliament and National Assembly for Wales on 21 March 2018.

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