On Thursday 30 March, the day after the Prime Minister triggered Article 50, the UK Government published the White Paper, Legislating for the United Kingdom’s withdrawal from the European Union. That is the so-called ‘Great Repeal Bill’ White Paper.
How an Assembly committee is investigating relations between institutions.
The Constitutional and Legislative Affairs Committee is undertaking an inquiry into inter-institutional working in order:
- To produce best practice principles for inter-institutional working for constitutional legislation.
- To reflect and build on the work of other legislatures on inter-institutional working as it relates to broader policy areas.
- To seek, establish and promote opportunities for inter-parliamentary working, including promotion of citizen engagement.
The devolution settlement is changing under the Wales Act 2017 which received royal assent on 31 January 2017. This article explores what this means for energy and environmental powers in Wales, and also highlights the different attitudes to the devolution of powers following withdrawal from the EU.
28 February 2017
Article by Nia Moss, National Assembly for Wales Research Service
On 6 and 13 February 2017 the First Minister for Wales, Carwyn Jones AM, and the Minister of State for Exiting the EU, Rt Hon David Jones MP gave evidence to the Assembly’s External Affairs Committee (@SeneddEAAL) on their governments’ respective white papers and their priorities for the negotiations on the UK’s withdrawal from the EU.
What was the view from Wales?
The First Minister for Wales told the Committee that his priority for the negotiations was ensuring that Welsh businesses are able to export to the European market in the same way as they do now. The First Minister outlined his view that this goal should be pursued even if it means a compromise on immigration but also highlighted the Welsh Government’s proposal to link the freedom of movement of people to employment.
In relation to the border between Ireland and Norther Ireland, the First Minister stated that he wouldn’t want to see a deal on the issue that would make it easier for companies to move goods through Northern Ireland than through Welsh ports.
In relation to future funding the First Minister stated that he expected Wales to be compensated for the loss of European funding. He outlined his view that this should be in the form of an increase in the block grant and that this funding should not be subject to the Barnett formula.
The First Minister said that the UK Government’s engagement with the Welsh Government had been good and he welcomed the quarterly meetings of the Joint Ministerial Council. However, the First Minister emphasised that he expects not only for the voice of the Welsh Government to be heard but also to play an active role in the negotiations with the EU. The First Minister set out his view that the Welsh Government had not yet received a coherent view from the UK Ministers on the UK Government’s negotiation position.
The First Minister argued that current structures for inter-governmental relations in the UK are not fit for purpose. He called for new structures for making policy decisions and resolving disputes between the four governments of the UK. He was clear in his view that following the UK’s withdrawal from the EU the default position on powers would be that all powers currently exercised by the EU in areas of devolved policy like agriculture would come back to Wales. He stated that this was not the current view in Whitehall where he said there is a belief that the UK Government will decide where powers currently held by the EU will go in the UK.
What was the view from Westminster?
The Minister of State for Exiting the EU, Rt Hon David Jones MP, told the External Affairs Committee that the UK Government had not yet decided when it would trigger Article 50. He stated that the UK Government had also not yet decided whether it would send a simple letter of notification or would send a more detailed letter outlining some of its negotiation objectives.
The Minister offered his reassurance to the Committee that the UK Government’s negotiation position would fully reflect the views of the devolved governments and legislatures. He stated that the UK Government would need to weigh conflicting concerns and priorities within the UK to come up with a solution in the best interests of the whole of the UK.
The Minister stated that he wanted ‘to be absolutely clear that we (the UK) will be leaving the single market’ but that he believed there would be every incentive for the EU to agree a comprehensive free trade agreement with the UK. He outlined that the UK Government is undertaking an analysis of over 50 sectors in the UK economy to consider the implications and opportunities for them post UK withdrawal.
The Minister stated that the Home Office is currently working on a policy in relation to free movement between Northern Ireland and the Republic of Ireland following the UK’s withdrawal from the EU.
On inter-governmental relations the Minister stated that the UK Government was not currently looking at the development of new constitutional structures to replace the JMC though they may consider this ‘in the fullness of time’. In relation to the repatriation of powers following the UK’s withdrawal from the EU the Minister stated that (PDF 432KB):
It will be necessary for the United Kingdom to make a decision as to where various competences lie. We have been absolutely clear in indicating that any devolved competences that are currently exercised at devolved level will not be, so to speak, clawed back. It will be necessary to decide where powers best lie. It may be that there will be scope for further devolution, but, it may well be there will be an advantage, and in fact an imperative to look at UK-wide structures to replace the competences that previously resided at Brussels level.
These two evidence sessions formed part of the External Affairs Committee’s work on the implications for Wales of the UK’s withdrawal from the EU. Find out more about the Committee’s work on its webpage or on twitter @SeneddEAAL. You can watch the evidence sessions in full on Senedd.tv
On Tuesday 17 January 2017 the National Assembly for Wales debated a Legislative Consent Motion on the Wales Bill. According to a convention (“the Sewel Convention”) the UK Government would not normally bring forward or support proposals to legislate in relation to Wales on subjects in which the Assembly has legislative competence without the Assembly’s consent. The consent of the Assembly is gained via a Legislative Consent Motion (LCM). The Wales Bill changes the powers of the Assembly therefore an LCM was required.
The motion, moved by the First Minister, stated:
To propose that the National Assembly for Wales, in accordance with Standing Order 29.6, agrees that provisions in the Wales Bill, in so far as they fall within or modify the legislative competence of the National Assembly for Wales, should continue to be considered by the UK Parliament.
The First Minister opened the debate. He explained that the Labour group had decided to look at the Bill “as a package” and on balance, decided to support the LCM although that decision was not easy.
When questioned about the key factor in choosing to support the Bill he replied:
The issue with Brexit has been the issue of Sewel for me. The Prime Minister herself said today that there will be no roll-back of powers, and I have to take her on her word, but if it is enshrined in law that there’s a requirement of consent from a devolved parliament or assembly, then that obviously carries more weight than if it’s just a convention. So, enshrining that in law is important, not just in terms of Brexit negotiations, but in terms of negotiations on a number of issues in the future where the UK Government will not be able to say, ‘Of course, in Scotland it’s the law, but in Wales, it isn’t, so we don’t have to pay Wales the same regard as Scotland.’
Huw Irranca-Davies AM, Chair of the Constitutional and Legislative Affairs Committee, which scrutinised the Bill said:
Wiser people than I have suggested that this Bill will not be the durable, once-in-a-generation settlement promised by Secretaries of State for Wales, and that the complexity and conditionality involved means we may potentially be ceding some ground. But there is no doubt that the ground on which we stand will be firmer and surer as a result of moving to a reserved-powers Bill. It stands us in good stead as we face a transition to Brexit and other external shock factors.
Plaid Cymru opposed the Bill on the grounds that it rolled back the powers of the Assembly. Party leader Leanne Wood AM stated:
We were told that a reserved-powers model would be delivered, and this has been one of the key demands for Plaid Cymru for many, many years, yet it quickly became apparent that the list of reserved powers would contain more than 200 reservations, and that anything relating to that list could be out of bounds by this Assembly in the future. Compared to the conferred-powers model, that represents a roll-back of our powers, and in our judgment it would therefore represent a roll-back on the 2011 referendum result.
The politics of this are clear to me. Following its Supreme Court defeat on the agricultural wages Bill, the UK Government wanted to remodel the Welsh constitution to avoid further defeats.
The Conservatives voted in favour of the Bill and party leader Andrew R.T. Davies AM particularly welcomed “that income tax will be coming to this institution to make sure that we do have greater accountability in the way the money has been spent in this institution and by the Government.”
UKIP voted against the Bill as they objected to the removal of the requirement for a referendum before devolving income tax powers. Leader Neil Hamilton AM said:
I do believe that, whilst the broad principles of the Bill are worthy of support, the way in which this has been handled has been very far from perfect, and, in regard to the removal of a referendum provision in relation to the devolution of income tax powers, I believe that that is a constitutional deficiency that we ought not to ignore.
The Assembly voted 38 in favour of giving its consent for the Bill to proceed and 17 against.
The following day the Wales Bill received its Third Reading in the House of Lords and was passed.
On the 24 January the Bill was returned to the House of Commons for consideration of the House of Lords amendments. The amendments were agreed and the Bill now awaits Royal Assent.
A further development on 24 January was the Supreme Court ruling on Article 50 which also ruled on the Sewel Convention in the devolved legislatures. It concluded that:
[…] the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.
The ruling will be covered in more detail in a forthcoming blogpost.
Article by Alys Thomas, National Assembly for Wales Research Service.