Our third update follows the recent UK General Election which resulted in a hung Parliament and the formal opening of negotiations with the EU on the 19th June.
Impact on the devolved administrations
Concern has been expressed about the effect which withdrawal from Europe could have on devolution in Wales. The Constitutional and Legislative Affairs Committee of the National Assembly for Wales has published a statement, setting out concern that the Assembly could lose control over legislation to the UK Government, particularly in policy areas in which European laws have previously had a significant impact, such as agriculture and the environment. The Committee’s concern is based on the experience of the approach which the UK Government took to the Wales Act 2017.
In its statement, the Committee identified five key principles which it said must underpin the UK Government’s Great Repeal Bill and any other legislation relating to withdrawal from the European Union. These are:
- The whole process of exiting the EU must always ensure respect for the rule of law
- Legislation arising from exiting the EU must be clear, precise and well-drafted
- The “Great Repeal Bill” and any other legislation relating to withdrawal from the European Union must be informed by the UK Government’s clear vision for the constitutional construction of the United Kingdom. That vision must be published
- The National Assembly for Wales must be the legislature responsible for legislating in devolved areas
- Where the UK Parliament/Government seeks to legislate through primary or secondary legislation in devolved areas, they must seek the consent of the National Assembly for Wales
The Committee said that the key issue for the UK Government to address is the creation of a legal and constitutional context that serves the devolved nations and the UK following the exit from the EU. It said that this context needs to be developed in partnership with devolved nations rather than being imposed on them.
The Committee also suggested that withdrawal from the EU provides an opportune time to re-examine the need for a separate legal jurisdiction in Wales and that the continued absence of this could marginalise the interests of Wales in the UK.
The Committee has made a strong case for the UK Government to address the role of Wales as a devolved administration within the UK. However, the question of whether there should be a separate jurisdiction for England and Wales is one which has been raised on several occasions and has not secured universal support even within Wales.
The statement from the Constitutional and Legislative Affairs Committee can be accessed here.
The Welsh Government has published a policy paper, setting out its proposals for responding positively and creatively to the constitutional implications of EU exit. In January 2017, the Welsh Government, together with Plaid Cymru, published a White Paper, Securing Wales’ Future: Transition from the European Union to a new relationship with Europe, which set out how the Welsh Government thought the UK should approach withdrawal from the EU.
This latest policy paper, Brexit and Devolution: Securing Wales’ Future, said that the arrangements for the UK’s withdrawal from the EU must reflect the reality of devolution. It identified four fundamental questions to consider:
- How to ensure coherence across the UK to protect the functioning of the internal market without undermining devolution
- How to achieve deeper and more sustained co-operation between the four governments in the UK in the exercise of individual but connected competences after the UK withdraws from the EU
- How to reform the machinery of government to support this coherence and co-operation
- How to build wider consensus across political parties and civic society about the long term governance of the UK
The paper said that the Welsh Government believes that, on matters within devolved competence, and where necessary, binding UK frameworks should be drawn up and agreed by all four administrations and separately, if necessary, the wider Union interest. The Welsh Government also believes that UK-wide discussions and agreement in some aspects of non-devolved policy are necessary to ensure that policies have legitimacy across all parts of the UK and that there is appropriate integration between devolved and non-devolved policies.
The paper said that clear and agreed criteria will be required for identifying where UK-wide approaches and decision-making structures are appropriate. Suggested criteria were:
- Measures which support a fully functioning internal UK market
- Matters where there is a direct dependency between devolved and non-devolved policy areas
- Trans-boundary co-ordination
- Shared administrative arrangements
- Compliance with international standards
The paper noted that the Joint Ministerial Committee, which currently brings together ministers from the four administrations in the UK to discuss policy in areas of common interest is a consultative body, which makes no decisions. The paper proposed the establishment of a UK Council of Ministers, which would have a structure and work programme designed to enable the negotiation and implementation of UK-wide framework agreements. It also suggested that there should be an independent secretariat.
In the paper the Welsh Government said that it hopes that the UK Government will recognise the need for co-operative and collaborative work between the devolved administrations and the UK Government by: consulting fully with the Welsh Government and the other devolved institutions on the principles and detail of the Great Repeal Bill or equivalent legislation; agreeing that the Sewel Convention applies and that a Legislative Consent Motion must be sought from the National Assembly for Wales; and removing any threat of introducing new constraints on the competence of the National Assembly or the Welsh Government. The Welsh Government has said that if the UK Government does not recognise this, the Welsh Government will need to consider other options to protect devolved interests, including introducing its own legislation to secure the rights of the National Assembly and the Welsh Ministers in respect of EU derived law in devolved areas of competence.
The Welsh Government’s paper Brexit and Devolution: Securing Wales’ Future and the White Paper Securing Wales’ Future: Transition from the European Union to a new relationship with Europe can be accessed here.
The question of citizenship rights is a key issue in the negotiation of the terms on which the United Kingdom leaves the European Union. The EU has proposed to guarantee the current rights of UK citizens living in other EU countries and for this guarantee to apply for the lifetime of those citizens. The UK Government has commenced its part in negotiations on citizenship, with the Prime Minister offering to guarantee rights for EU citizens who live in the UK. EU citizens who have resided lawfully in the United Kingdom for at least five years will be eligible for “settled status”, which will allow them to remain in the UK indefinitely. It is not yet clear when the cut-off point will be. The EU may be keen for it to be the point at which the UK leaves the EU in March 2019, in view of the many EU citizens who currently live in the UK but have done so for fewer than five years.
The question of which laws will apply to those citizens may also be contentious. The EU expects the rights of EU citizens living in the UK to be protected by EU law, overseen by the European Court of Justice, whilst the UK will expect the UK legal system alone to apply.
Position papers from the EU
The European Commission has made a commitment to complete transparency in the Article 50 process and has now posted 16 negotiating position papers in a dedicated section of the EU Commission website. The latest position papers were published on 28 June on: judicial and administrative procedures; cooperation in civil and commercial matters; goods placed on the market under EU law before the withdrawal date; governance; issues relating to the functioning of EU institutions, agencies and bodies; and ongoing police and judicial cooperation in criminal matters. The future position of the European Court of Justice is one of a number of issues raised by the EU in position papers for negotiation with the UK over the withdrawal of the UK from the EU. Points made about the EU’s position include:
- The provisions of the withdrawal agreement between the EU and the UK on citizens' rights, and enshrining the continued application of Union law should deploy, within the legal orders of the EU and the UK the same legal effects as those which EU law had deployed within the Union until the date of withdrawal of the UK. The UK should ensure compliance with those provisions through a legislative act
- All rulings given by the European Court of Justice under the terms of the withdrawal agreement are binding on the EU and the UK and are enforceable in the UK under the same conditions as those laid down in Article 299 of the Treaty on the Functioning of the European Union. In respect of any procedure before the European Court of Justice relating to the application and interpretation of the withdrawal agreement which affects the interests of the UK, the UK shall have the same procedural rights as those enjoyed by EU member states under the Statute and the Rules of Procedures of the Court of Justice
- The withdrawal agreement should establish a joint committee with the tasks of: ensuring the good functioning of the withdrawal agreement; adopting all measures necessary to deal with unforeseen situations not covered in the withdrawal agreement under the conditions set out in the agreement; deciding on the incorporation of future amendments to EU law in the withdrawal agreement where such incorporation is provided for in the agreement; discussing divergences of views between the parties; and performing any other task conferred on it by the withdrawal agreement
- The withdrawal agreement should establish separate regimes for the enforcement of the provisions of the withdrawal agreement on citizens' rights and enshrining the continued application of EU law, and other provisions
- The withdrawal agreement should require the UK to ensure, within its jurisdiction, the continued compliance with the obligations incurred under EU law before the withdrawal date imposing an obligation of secrecy
- The withdrawal agreement should require the UK and the EU institutions, agencies or bodies to guarantee to any EU classified information received before the withdrawal date the same level of protection as expected in the applicable provisions of EU law
Understandably, the focus of many of the points in the EU’s position statements is on ensuring that rights and obligations which are put in place before the UK withdraws from the EU will be preserved afterwards. The approach which the EU and the UK take to longer term and potentially controversial issues, such as citizenship, will be instrumental in determining the way in which the withdrawal is conducted and the ongoing relationship between the UK and the EU.
Further Information and Legal Support
In the meantime, if you would like to know more, please contact a member of our Local Government Team.
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