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21 August 2017

20: Great Repeal Bill – I’ve got the power

This post looks at the delegated powers given to Northern Ireland, Scotland and Wales.

As previously discussed, the Bill authorises a minister of the Crown, by means of regulations, to modify not only secondary legislation (ie other regulations, orders and rules), but also primary legislation (ie Acts of Parliament). The use of such ‘Henry VIII powers’ is controversial in any Bill because an Act of Parliament can normally only be amended by another Act of Parliament.

Significantly, clause 10 of and Schedule 2 to the Bill also confers powers on devolved administrations to deal with deficiencies in retained EU law and power to implement the Withdrawal Agreement. There are two important respects in which these powers differ from the powers held by Westminster ministers.

First, they are subject to more limitations: the power to deal with deficiencies arising from withdrawal cannot be used outside of the devolved competence of the devolved authorities.

As we explained last week, this is a significant limit because retained EU law is proposed to form a limit on the powers of the devolved bodies. There will be no power for Scotland, Wales and Northern Ireland to create rules inconsistent with the retained EU law (ie saved EU-derived domestic legislation and the EU regulations and other rights which are transposed into domestic law at ‘Brexit day’).

Schedule 2 makes clear that such limitations also apply to use of the delegated powers given to the devolved bodies. Moreover, the devolved authorities are prohibited from using the delegated power in ways that would create inconsistencies with any modifications to retained direct EU law which the UK Government has made. For example, where Westminster is modifying an EU regulation and a devolved body is modifying the domestic legislation which creates the enforcement provisions for that EU regulation, the domestic legislation will need to be amended by Northern Ireland, Scotland or Wales in a way that is consistent with the corrected EU regulation.

Given that the delegated powers in the Bill allow for the creation of new public bodies or for existing public bodies to take control of functions which are currently exercised by EU bodies, this again puts a significant limit on the ability of the devolved bodies to shape their own regulatory framework – unless they are able to engage with Westminster so that the matter is released or an amendment is made in the Bill itself.

The Bill also requires the devolved administrations to seek consent from the Westminster where:

  • a regulation using the delegated powers comes into force prior to Brexit day; or
  • where the regulation concerns ‘reciprocal arrangements’ between domestic and EU bodies (or bodies within other EU member states).

The second difference between those powers given to Westminster ministers and those given to the devolved bodies is that the Bill replicates the existing requirements imposed on the devolved bodies to obtain consent from Westminster for exercising their delegated powers where it would usually have to obtain consent prior to the Bill being passed.

How these proposals and limitations interact with the proposed Welsh ‘Continuation Bill’ proposed to be introduced in the Welsh Assembly will be interesting to follow in the coming months. The purpose of the Continuation Bill is to:

‘uphold Wales’s constitution and convert into Welsh law all European legislation related to devolved policy areas.’

It seeks to do this by directly implementing EU law as it currently stands into the Welsh system and thereby bypass the need for the Bill to apply to Wales. The leader of Plaid, Leanne Wood, wrote in The Times:

‘A Welsh Continuation Bill would enshrine current regulations that relate to already devolved matters into Welsh law, protecting people in Wales from UK Conservative Ministers using their expanded Henry VIII powers, granted by the Repeal Bill, to unpick and repeal legislation without the consent of the Welsh Assembly.’

Such a ‘Continuation Bill’ potentially runs contrary to the provisions in the Bill and it may be a race to the finish line between the Bills before the limits on the devolved competence and the delegated powers are passed by Westminster.

All of these changes, limitations and issues emphasise the need for the devolved bodies and Westminster to engage with one another, and understand the legal effects on the devolution settlement that has been created since 1997. Everyone – individuals, organisations, devolved administrations, and regulatory bodies – should be alert to the potential effects of the Bill on the UK’s devolution arrangements.

‘I’ve got the power / I’ve got the power / It’s getting, it’s getting, it’s getting kinda hectic’ – I’ve got the power, Snap.

 

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