EU Withdrawal: Irritable Bill Syndrome

The EU Withdrawal Bill is currently being eased through the bowels of Westminster, digested by the Houses of Commons and Lords, inched forward by the peristalsis of readings, committees and amendments. The question of where repatriated powers should lie and how this impacts the devolution settlements is clearly going to be a cause of irritation as the Bill forms. Nobody expects this to be a smooth passage.

This blog is a layman’s attempt to understand some of the issues involved and to think aloud about whether complaints of a “Westminster power grab” are justified or not. The fact that I think Brexit itself is an act of great folly, I will place to one side.

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Those accusing the UK Government of an attempted power grab¹ argue that powers being repatriated from the EU should be passed directly to the devolved authorities if they relate to existing devolved competences. On the surface this may appear a reasonable enough stance, but it’s worth making two simple observations.

1. The powers in question are powers that have never been within the legislative competence of the devolved authorities (i.e. in practice they have never been devolved)


2. The powers in question are (in general) powers used to maintain the integrity of the EU Single Market so - by logical extension - they’re powers that relate to maintaining the integrity of the UK single market

The first of these points is reinforced by the wording of the Withdrawal Bill itself, which takes pains to specify that anything that is within the legislative competence of the Scottish parliament or Welsh Assembly before Brexit, remains so after².

This is all because devolution occurred while the UK was in the EU. The context was that EU (and by implication UK) single market integrity was assured by the devolved authorities' obligations to comply with EU law. Brexit takes away that obligation, so the context dramatically changes; new legislation is needed to assure the integrity of the UK single market post-Brexit.

It can be argued that when "fully devolving" certain competences while expecting to remain within the EU, in effect the UK Government reserved some powers to exercise in concert with other EU member states through the Council of Ministers. The nub of the issue here is the use of the words “in effect” in the previous sentence.

To illustrate: the Scottish Devolution Settlement sets out matters which are reserved to the UK parliament and "all other issues are deemed to be devolved". With particular relevance to the EU Withdrawal Bill, the implication is that current "fully devolved" competences include: Agriculture, Forestry & Fisheries; the Environment; Justice & Policing; Trade & Industry; Economic Development.

This means that a large number of the powers* being repatriated relate to competences that are "deemed to be devolved". Depending on your perspective, this is either a legal technicality or an important point of principle.

* I detail the specific powers at the foot of this blog-  to cover here would be to distract from the core argument.

The “legal technicality” argument points to the fact that the Welsh Devolution Settlement is worded differently, defining instead what is devolved and Stating that "any area not listed [..] is non-devolved" - yet surely the spirit of devolution was the same in both cases? This argument also suggests that legislators did not consider the possibility that the UK would leave the EU when drafting these settlements, or at least failed to think through the consequences of leaving when drafting Scotland's.

The “important principle” argument is that put forward by the late Donald Dewar, namely that the default position should be for everything to be devolved that isn’t specifically required to be reserved. Presumably it's an acceptance of this principle that has led to recent proposals for the Welsh Devolution Settlement to be changed from a "conferred powers" model to a "reserved powers" model (i.e. to mirror the approach taken with Scotland's settlement). These are changes that should come in to force from April 2018, well ahead of Brexit.

Both arguments have merit, but a sensible approach would surely be to look at what in practice we want to achieve rather than being constrained by where we start from - particularly if we accept the argument that where we start from is in large part due to previous legislators’ failure to consider the possibility that the UK wouldn’t perpetually be a member of the EU. To put it another way: do the repatriated EU laws fall into the category of being required to be reserved?

The powers being repatriated are (in general) powers that exist with the EU to enable the creation and enforcement of frameworks that guarantee the integrity of the EU single market. For the very reason that that these powers are held at an EU level now, the default assumption must surely be that they are required at a UK level to guarantee the integrity of the UK single market.

Of course in theory these powers don’t need to be held by the UK Government for UK-wide frameworks to be agreed by the constituent nations – but ”in theory” that same argument could be applied to the EU member states. The political reality for the EU has been that to create and enforce these frameworks has required reservation of certain powers.

The UK is clearly a different beast from the EU, and some argue that these frameworks should be able to be created by mutual agreement between the constituent nations, that there's a big difference between UK-wide frameworks being imposed and those frameworks being agreed. Of course this is true, but the process of agreement is one of negotiation - and few would argue that the UK Government isn't overloaded with negotiating tasks right now. In this context, any negotiation that can be sensibly deferred surely should be - this isn't the time for the UK to be playing "constitutional and legislative poker games."³

Context matters here. With Scotland controlled by an SNP government who make no secret of their desire to break up the UK, it seems optimistic in the extreme to assume they would negotiate in good faith to preserve the integrity of UK single market, rather than opportunistically seek to further their cause of separation.

From here forwards I'm going to suggest we accept a simple principle: the manner in which we handle repatriated powers should be the simplest option that guarantees the integrity of the UK single market.

The first point about simplicity is one of pragmatism. To (mis)apply Occam’s Razor⁴: the simplest answer is normally the right one. The scale and complexity of the EU Withdrawal Bill is unprecedented; wherever simple solutions can be found they should be gratefully seized.

So as a first step we might assume that all powers repatriated from the EU should reside with the UK Government, at least in transition. This seems simple and one might argue that it guarantees the integrity of the UK single market. Except of course it doesn’t if it creates cause for grievance that can justifiably be seized upon by nationalists and used as a catalyst for, say, another Scottish independence referendum.

The source of this potential grievance lies in the fact that to legislate to reserve these repatriated powers to the UK requires the legislative consent of the devolved authorities (or use of the controversial Henry VIII clause).

With the rhetoric of “Westminster power grab” being used already, we can be sure that any legislation that could be construed as “re-reservation of powers" will be exploited for grievance purposes and legislative consent withheld.

But if we trust our ability to have an informed national debate, the question that matters is surely whether there is a justified cause for grievance.

Given that the powers in question have never been exercised by the devolved nations and are pretty much by definition powers required to maintain the integrity of the UK single market, it would seem difficult to rationally argue against the simple exponent of, by default, shifting the powers (initially at least) to Westminster.

If we consider the avowedly pro-EU SNP's position: how can they credibly argue that they're in favour of these powers being reserved to Brussels while we're in the EU, but object to those self-same powers being reserved to Westminster when we're not? After all, when it comes to constraints applied by EU law today, the devolved authorities have no direct link to the Council of Ministers - the Scottish Government has far more influence at Westminster than it does at Brussels, so its influence would grow even if these powers "only" shift to being reserved at a UK level.

It seems that the SNP's position can simply be summarised as "Brussels good, Westminster bad". This mindset is neatly illustrated by an exchange I had on Twitter with Patrick Harvie (leader of the Scottish Greens) in which he made it clear that the difference between Brussels and Westminster is that, when it comes to Westminster, he doesn't trust "them";

** Clarification [27/11/2017]**

Although I include the complete text of the tweet above (and link to the tweet in the quoted text above the image), Patrick has asked me to point out that his final tweet did also include a link to this article > Supreme court orders UK to draw up air pollution cleanup plan, so he feels I am unfairly implying he is demonstrating unjustfied prejudice in the way I have presented this. I'm happy to clarify

** Ends **

From the Scotland Act 2016 to the current proposed revisions to the Welsh Devolution Settlement, the UK government has shown its willingness to embrace and continue the process of furthering devolution. In this context, the fact that simple and pragmatic solutions are proposed during the (already hugely disruptive) process of withdrawal from the EU shouldn't be interpreted as evidence of malign intent.

If anybody here is attempting a "power grab", it would seem to be those devolved administrations exploiting a legal technicality to gain powers they have never previously exercised.

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Appendix: The Specific Powers in Question

This blog has referred only to powers in a general sense in an attempt to avoid becoming bogged down in detail. The detail of the specific powers in question is informative, however, at it helps us understand how and why these powers matter and why they were reserved to the EU in the first place.

According to a list published by Nicola Sturgeon and Carwyn Jones, there are 111 powers that are "vulnerable to a Brexit Power Grab". It's a long list but we can group many of them together to help us judge their importance to retaining the integrity of the UK single market. I've relegated the actual list to a footnote⁵.

As many as 29 could be said to broadly relate to Environmental Protection. If part of the UK has less stringent environmental standards than another, it’s likely to be cheaper to manufacture and produce there (because complying with environmental regulation carries a cost), so “unfair” economic advantage would be conferred on that area.  “Unfair” because the resulting pollution or environmental damage would, of course, not respect any borders.

At least 16 relate to agriculture, fisheries and food. These include issues relating to standards of animal welfare, approaches to disease control and regulations on pesticide use. To allow free movement of livestock and fair competition between producers, it’s essential that these issues are governed by common frameworks. At least 5 of these relate to food standards and labelling: conformation with these standards places a burden on businesses or places constraints on their marketing - so if we’re to maintain a level playing-field and ensure free-movement of goods, then common UK rules have to be agreed and adhered to.

Fisheries is just one of these, but it’s a big one. Anybody who cares about the sustainability of fish stocks recognises that fishing waters around these islands (and of course more widely) need to be carefully managed. The imposition of fishing quotas is the short-term price we pay for long-term sustainability. To allow a structure where (say) English fishermen were subject to more stringent quotas than their Scottish competitors would be a clear “single market” failure.

Just one relates to state aid, but again it’s a big one. As long as we’re committed to pooling & sharing resources, it's surely logical that state aid rules are consistently applied within the UK.

There are a large number (36?) that can be grouped under the broad category of Justice & Home Affairs. I confess to have tired by this stage and to lack enough knowledge of these topics to offer insightful comment - but to the layman's eye it does seem that some of these could be devolved without without causing obvious risk to the UK single market.

At this stage I start to flag. It looks to me like maybe 7 relate to data sharing and information security, 7 to medical and scientific matters, 3 to transport, and 7 "others" which include energy related issues. I'll leave it to others more informed than me to comment on the necessity or not for these to be exercised at a UK-level

Finally, there are 5 which relate to EU institutions - depending on the nature of the final Brexit settlement these presumably become redundant, get replaced by UK equivalent bodies or we choose to continue to co-operate with the relevant EU Agencies

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This blog has been greatly informed by the following, each of which I strongly recommend;

On the case for all repatriated powers to initially go to Westminster:
"Continuity, Devolution & the EU Withdrawal Bill" - D.H Robinson for These Islands

On the case for all repatriated powers in areas of devolved competence to go directly to the devolved authorities:
"Brexit & The Territorial Constitution" - Prof Richard Rawlings for The Constitution Society

The balanced Case, including arguments from "both sides":
"Brexit: Devolution" - House of Lords European Union Committee

 
Notes

1. The Scottish and Welsh First Ministers (Nicola Sturgeon and Carwyn Jones) have taken this position¹, as have the leaders of the Scottish Labour & Green parties (Richard Leonard² & Patrick Harvie³) among many others.
"statement issued by Ms Sturgeon Carwyn Jones" - BBC
"Richard Leonard backs Nicola Sturgeon in Brexit powers row" - Guardian
"Harvie raises Westminster power grab concerns at FMQs" - Greens Press Release

2.  Note clauses (11.1.b) and (11.2.6) of the Withdrawal Bill

These clauses can be tricky to read, so let's expand the Scottish example. Section 29 of the Scotland Act 1998 already states:

"An act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Scottish Parliament. A provision is outside the competence so far as [...] it is incompatible with [..] EU Law"

The Bill proposes this is amended to effectively replace EU Law with "retained EU Law". The actual clause wording becomes:

"An act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Scottish Parliament. A provision is outside the competence so far as [...] it is in breach of the restriction subsection 4(A)"

where subsection 4(A) effectively reads:

"An Act of the Scottish Parliament cannot modify [..] retained EU Law" [unless] "the modification would, immediately before exit day, have been within the competence of the Scottish Parliament"

3. "Enough has been said to highlight the importance of the UK single market dimension for the balance of power between the UK Government and the devolved administrations, as well as the scope, as time ticks by, for high stakes constitutional and legislative poker games." Brexit & Devolution (page 12) -  Professor Rick Rawlings

4. Occam’s Razor applies to explaining phenomenon rather than establishing strategies, but I think the parallel is reasonable here

5. The Powers in Question

A breakdown of the 111 powers as identified by the SNP as being those which "intersect with the devolution settlement in Scotland" [Numbers given are those used by the SNP when publishing the list, groupings are merely my own "rough & ready" attempt]

Environment Protection
29. Environmental Impact Assessment (EIA) Directive; 30. Environmental law concerning energy planning consents; 31. Environmental law concerning offshore oil & gas installations within territorial waters; 32. Environmental quality - Air Quality; 33. Environmental quality - Chemicals; 34. Environmental quality - Flood Risk Management; 35. Environmental quality - International timber trade (EUTR and FLEGT); 36. Environmental quality - Marine environment; 37. Environmental quality - Natural Environment and Biodiversity; 38. Environmental quality - Ozone depleting substances and F-gases; 39. Environmental quality - Pesticides; 40. Environmental quality - Spatial Data Infrastructure Standards; 41. Environmental quality - Waste Packaging & Product Regulations; 42. Environmental quality - Waste Producer Responsibility Regulations; 43. Environmental quality - Water Quality; 44. Environmental quality - Water Resources; 45. Environmental quality - Biodiversity - access and benefit sharing of genetic resources; 10.Carbon Capture & Storage; 8. Aviation Noise Management at Airports; 28.Energy Performance of Buildings Directive; 61.Hazardous Substances Planning; 65. Ionising radiation; 66.Land use; 78.Onshore hydrocarbons licensing; 97.Radioactive Source Notifications – Trans-frontier shipments; 98. Radioactive waste treatment and disposal; 107.Strategic Environmental Assessment (SEA) Directive; 16. Control of major accident hazards; 24. Efficiency in energy use


Agriculture, Forestry & Fisheries
1. Agricultural Support; 2. Agriculture - Fertiliser Regulations; 3. Agriculture - GMO Marketing & Cultivation; 4. Agriculture - Organic Farming; 5. Agriculture - Zootech; 6. Animal Health and Traceability; 7. Animal Welfare; 51. Fisheries Management & Support; 56. Forestry (domestic); 11. Chemicals regulation (including pesticides);  80. Plant Health, Seeds and Propagating Material

Food & Food Labelling
52. Food and Feed Law; 53. Food Compositional Standards; 54. Food Geographical Indications (Protected Food Names); 55. Food Labelling; 77. Nutrition health claims, composition and labelling

105.State Aid

Justice & Home Affairs
12.Civil judicial co-operation - jurisdiction and recognition & enforcement of judgments in civil & commercial matters (including B1 rules and related EU conventions); 13.Civil judicial co-operation - jurisdiction and recognition & enforcement of judgments instruments in family law (including BIIa, Maintenance and civil protection orders); 14. Civil judicial cooperation on service of documents and taking of evidence; 15. Criminal offences minimum standards measures - Combating Child Sexual Exploitation Directive; 81. Practical cooperation in law enforcement - Asset Recovery Offices; 82. Practical cooperation in law enforcement - European Investigation Order; 83. Practical cooperation in law enforcement - Joint Action on Organised Crime; 84. Practical cooperation in law enforcement - Joint investigation teams; 85. Practical cooperation in law enforcement - mutual legal assistance; 86. Practical cooperation in law enforcement - mutual recognition of asset freezing orders; 87. Practical cooperation in law enforcement - mutual recognition of confiscation orders; 88.Practical cooperation in law enforcement - Schengen Article 40; 89. Practical cooperation in law enforcement - Swedish initiative; 90. Practical cooperation in law enforcement - European judicial network; 91. Practical cooperation in law enforcement - implementation of European Arrest Warrant; 70. Minimum standards -housing & care: regulation of the use of animals; 71. Minimum standards legislation - child sexual exploitation; 72. Minimum standards legislation - cybercrime; 73. Minimum standards legislation - football disorder; 74. Minimum standards legislation - human trafficking; 103. Rules on applicable law in civil & commercial cross border claims; 104. Sentencing - taking convictions into account; 92 .Procedural rights (criminal cases) - minimum standards measures; 93. Provision of legal services. 94. Provision in the 1995 Data Protection Directive (soon to be replaced by the General Data Protection Regulation) that allows for more than one supervisory authority in
each member state; 109. Uniform fast-track procedures for certain civil and commercial claims (uncontested debts, small claims); 110. Victims rights measures (criminal cases); 111. Voting rights and candidacy rules for EU citizens in local government elections; 101. Recognition of insolvency proceedings in EU Member States; 67. Late payment (commercial transactions);  68.Legal aid in cross-border cases; 69. Migrant Access to benefits; 75. Mutual recognition of professional qualifications; 76. Mutual recognition of criminal court judgments measures & cross border cooperation - European Protection Order, Prisoner Transfer Framework Directive, European
Supervision Directive, Compensation to Crime Victims Directive; 17. Cross border mediation;
46. Equal Treatment Legislation


Data Sharing and Information Security
18. Data sharing - (EU fingerprint database (EuroDac); 19. Data sharing - European Criminal Records Information System (ECRIS); 20. Data sharing - False and Authentic Documents Online (FADO); 21. Data sharing - passenger name records; 22. Data sharing - Prüm framework;
23. Data sharing - Schengen Information System (SIS II); 26. Elements of the Network and Information Security (NIS) Directive

Medical & Scientific
9. Blood Safety and Quality; 57. Free movement of healthcare (the right for EEA citizens to have their elective procedure in another member state); 59.Good laboratory practice; 96.Public health (serious cross-border threats to health); 108.Tissues and cells; 79.Organs; 25. Elements of Reciprocal Healthcare

Transport
99. Rail franchising rules; 100. Rail markets and operator licensing; 60. Harbours

Others
27. Elements of Tobacco Regulation; 58. Genetically modified micro-organisms contained use; 62. Heat metering and billing information; 63. High Efficiency Cogeneration; 95. Public sector procurement; 102. Renewable Energy Directive; 106.Statistics

EU Agencies

47. EU agencies - EU-LISA; 48. EU agencies - Eurojust; 49. EU agencies - Europol; 50.EU Social Security Coordination; 64. Implementation of EU Emissions Trading System