Devolution
- The current devolution settlements were agreed after the UK became a member of what is now the EU and reflect that context. In areas where powers have been devolved, each of the current settlements specifies that the relevant devolved institution cannot legislate or otherwise act in a way that is incompatible with EU law.
- The Act 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 remove the requirements that the devolved legislatures and the devolved administrations can only legislate or otherwise act in ways that are compatible with EU law. It then inserts powers into each of those Acts to apply, by regulations, a temporary ‘freeze’ on devolved legislative or executive competence in specified areas, so that in those areas the current parameters of devolved competence are maintained.
- The use of the ‘freezing’ powers is a transitional arrangement while decisions are taken on where common policy approaches are or are not needed, with both the powers themselves and any regulations made under them being subject to sunset provisions. The powers will expire two years after exit day (although they can be repealed earlier under the power in section 12(9)) and the regulations themselves will expire five years after they come into force (if not revoked earlier).
- In areas specified under the powers the devolved legislatures or administrations may only modify retained EU law to the extent that they had the competence to do so immediately before exit. This means that devolved institutions will still be able to act after exit in these areas as they could prior to exit. For instance, where they currently have discretion over how to implement an EU directive, after exit they will have the ability to modify retained EU law in ways that remain consistent with the underlying directive, rather than being constrained by their existing implementing legislation. By contrast, for example, devolved legislation which would amend or otherwise be incompatible with retained direct EU legislation (such as EU regulations) would, as now, remain outside competence where section 12 regulations are in force.
- Where a UK minister is proposing to lay ‘freezing’ regulations before Parliament for consideration, the minister must first send a copy of the draft regulations to the relevant devolved administration, and inform the presiding officer of the devolved legislature that the draft has been provided. The devolved administration will then, in practice, be responsible for putting any question of consent to the devolved legislature. The draft regulations cannot be laid before the UK Parliament unless a decision on consent has been made by the devolved legislature, or a 40 day period has elapsed in which no decision has been made. The regulations will then be subject to the affirmative procedure before the UK Parliament.
- The minister must also publish a written statement explaining the effect of the draft regulations before they are laid. If a decision is made to proceed in the absence of the devolved legislature’s consent, the minister must publish a further statement explaining why the minister has invited Parliament to approve the regulations without that consent and the minister must provide to Parliament any explanation received from the relevant devolved administration that sets out the reasons for the devolved legislature not giving its consent.
- The UK Government and the Welsh Government have agreed an Intergovernmental Agreement (IGA) and a Memorandum of Understanding (MoU), which set out, among other things, how the ‘freezing’ powers will be used. As part of the IGA the Government has committed that the UK Parliament will not normally be asked to approve ‘freezing’ regulations without the consent of the devolved legislatures.
- This is linked to the ongoing work on designing and implementing common frameworks, which is led by the Chancellor of the Duchy of Lancaster and supported by the relevant territorial Secretary of State and began immediately following the Bill’s introduction. The discussions are guided by the principles agreed at the Joint Ministerial Committee (EU negotiations) on 16 October.
- The political commitments made by the UK Government to the Welsh Government in the IGA and the MoU also apply to the Scottish Government and to the Northern Ireland Executive, although they were not parties to the Agreement at the time this Act received Royal Assent.
- The Act imposes a reporting duty on the UK Government in relation to the ‘freezing’ powers and regulations. At the end of every three months following the day on which the Act received Royal Assent, UK ministers must lay a report before both Houses of Parliament on progress toward removing the arrangements for ‘freezing’ devolved competence. The report must contain details of any steps towards replacing temporary ‘freezing’ regulations with ongoing frameworks; explain how the principles agreed at the Joint Ministerial Committee in October 2017 have been taken into account; specify any ‘freezing’ regulations made or ‘freezing’ powers repealed during the reporting period; provide the minister’s assessment of progress required in order to revoke remaining ‘freezing’ regulations or repeal remaining ‘freezing’ powers; and contain any other information the minister considers to be appropriate.
- The reporting duties are supported by an additional duty for UK ministers to consider, at the end of each three month reporting period, whether to repeal the ‘freezing’ powers (where they have not yet expired or been repealed) and whether to revoke any ‘freezing’ regulations (where they have not been revoked). In undertaking their consideration of whether to repeal the ‘freezing’ powers, ministers must have regard to the fact these arrangements are temporary and to any progress made towards the implementation of future frameworks.
- The Act provides exceptions to the limit on modifying retained EU law in areas specified in regulations in order to allow the devolved administrations, where appropriate, to use the power to correct deficiencies in domestic legislation within devolved competence and the power to implement the withdrawal agreement. However, in areas that have been specified in ‘freezing’ regulations, those powers are not able to modify retained direct EU legislation, anything that is retained EU law by virtue of section 4, or confer functions that correspond to powers to make EU tertiary legislation.
- The IGA and the MoU also set out how the UK Government and the Welsh Government will work together using their respective delegated powers in preparation for exit day. The UK Government has committed in the IGA that it will not normally use its delegated powers in areas of devolved competence without the agreement of the devolved administrations. Where the UK Government is proposing to amend retained direct EU law which relates to areas that are otherwise devolved, but which cannot be amended by the devolved administrations because ‘freezing’ regulations have been made, the UK Government has committed that it will first consult the relevant devolved administration(s).
