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09 August 2017

19: Great Repeal Bill – Limits lie

This post looks at how the Bill deals with the powers of the devolved bodies in a post-Brexit world.

It was, originally, unclear exactly how the Bill would deal with Northern Ireland, Scotland and Wales. By way of background, all of the devolved bodies have had their legislative competence, and therefore their legal scope for action in respect of European Union law limited by Westminster. This means that where an EU regulation or directive requires implementation, Westminster, Holyrood, the Senedd and Stormont were all reading from the same hymn sheet: a devolved body cannot act inconsistently with the underlying EU legislation.

The problem that Brexit raises for Westminster is this: given that an assorted array of policy areas (eg environment, agriculture, food, transport, education) have been devolved to differing degrees to the constituent nations, how can a consistent approach be ensured across the UK once EU law no longer limits the legislative scope of the devolved bodies?

The answer is important for two reasons. First, the effective functioning of the UK internal market could be put in peril if, for example, Scotland passes legislation that would, in effect, make it difficult or less competitive to sell products from England in Scotland. For example, if the devolved bodies had different rules regulating food, it would be for companies in different constituent parts of the UK to comply with different standards thereby potentially reducing their competitiveness.

Second, it has the potential to affect the UK’s free trade offering to the world: how can the UK Government say it will allow, for example, chlorinated chicken imports from the USA across the UK if Wales is free to pass legislation banning it? The issue had the potential to give the devolved bodies significant leverage over our future global trade negotiations.

The Bill has provided an answer to the questions – and the answer is that ‘retained EU law’ will be a limit on the legislative scope of the devolved bodies. As has been explained on this blog, ‘retained EU law’ encompasses saved EU-derived domestic legislation and the EU regulations and other rights which are transposed into domestic law at ‘Brexit day’.

As the Explanatory Memorandum explains:

The Bill amends each of the devolution statutes (the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 2006) so as to maintain the current parameters of devolved competence as regards retained EU law. This is intended to be a transitional arrangement while decisions are taken on where common policy approaches are or are not needed.

Identifying these ‘common policy approaches’ will be carried out in the coming months:

The UK Government hopes to rapidly identify, working closely with devolved administrations, areas that do not need a common framework and which could therefore be released from the transitional arrangement by this power. This process will be led by the First Secretary of State and supported by the relevant territorial Secretary of State and will begin immediately following the Bill’s introduction.

So while the Westminster government looks to develop common frameworks, there will be no power for Scotland, Wales and Northern Ireland to create inconsistent rules. The first Ministers of Scotland and Wales have reacted to the Government’s approach in the Bill by calling it:

‘a naked power-grab, an attack on the founding principles of devolution and could destabilise our economies’.

The Welsh and Scots will very likely be arguing that this limit should be removed – but, in the event that it is not, there is still a way for the devolved bodies to seek to increase their existing powers. This opportunity will also be open to regulatory bodies (devolved or otherwise!).

The first method to seek to increase existing powers is through engagement on the individual bills governing agriculture, immigration, etc to ensure their powers are not further limited.

Second, devolved bodies and individual regulatory and statutory bodies around the UK should keep their eyes wide open for which EU competences and functions could be transferred to them. As the government looks at these ‘common policy areas’, it has the choice of establishing new UK public bodies or using existing ones, giving rise to the potential for bodies to expand their roles.

The third is through a mechanism that exists in the Bill itself: the government has the power to release matters from the newly imposed limit on devolved bodies where it is agreed that a common approach established by EU law does not need to be maintained and can therefore be changed by the devolved bodies. Again, the devolved bodies and regulatory bodies have a role to play in influencing the final outcome by arguing that they should have legal competence to take on the relevant (for the time being) EU function.

The Bill is fundamentally changing the devolution settlement and the regulatory framework in the UK – what the final lie of the land will be is uncertain and likely to be the subject of controversy if not legal challenge.

‘Who knows where your limit, where your limit lies’ – Limits Lie, Jamie T