New law to protect Welsh devolution passed by Assembly

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Series Details 21.03.18
Publication Date 21/03/2018
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Responding to the introduction of the European Union (Withdrawal) Bill by the United Kingdom Government on the 13 July 2017, First Minister of Scotland Nicola Sturgeon and First Minister of Wales Carwyn Jones issued a joint critical statement.

'The European Union (Withdrawal) Bill does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK government and Parliament, and imposes new restrictions on the Scottish Parliament and National Assembly for Wales.

Following a meeting in Edinburgh on the 22 August 2017 First Minister of Wales Carwyn Jones and First Minister of Scotland Nicola Sturgeon agreed to work together on amendments to the UK Government’s EU Withdrawal Bill.

The changes would be designed to protect devolved powers and responsibilities and provide effective powers to ensure devolved law works on withdrawal from the EU.

The First Ministers also committed to coordinate advice to the Scottish Parliament and Welsh Assembly to ensure that both were fully informed of the risks posed by the UK Government Bill and the proposed changes.

Damian Green, First Secretary of State and Minister for the Cabinet Office in the United Government and the Secretary of State for Wales Alun Cairns had meetings on the 4 September 2017 in Cardiff with the First Minister of Wales Carwyn Jones on arrangements under the EU (Withdrawal) Bill for distributing powers returned from the European Union.

Damian Green expressed confidence that progress could be made in talks with the Welsh Government on delivering a successful exit from the EU.

He said that there was a need to identify policy areas where common UK frameworks would be required as well as those areas that could be devolved to the devolved administrations.

The fifth meeting of the Joint Ministerial Committee (EU Negotiations) had taken place in London on the 16 October 2017 bringing together the UK government with the devolved administrations of Scotland, Wales and Northern Ireland.

United Kingdom First Secretary of State Damian Green met Welsh Secretary Alun Cairns and First Minister of Wales Carwyn Jones, along with Local Authority leaders on the 30 November 2017 in Cardiff to move discussions on Brexit forward.

The meeting was part of a series of talks between both governments to help determine where powers repatriated from the EU to the UK at the point of Brexit would sit in future. It followed a positive and constructive meeting between the three ministers on the 11 October 2017.

After the meeting First Secretary of State Damian Green MP said he was encouraged by the constructive nature of the latest round of Brexit talks with the Welsh First Minister in Cardiff.

In a separate statement First Minister Carwyn Jones said that both sides recognised that progress had been made since the last meeting. A detailed discussion about future frameworks was positive and demonstrated a developing and serious attempt to resolve differences.

There were clearly still obstacles to overcome before the Welsh Government could recommend supporting the Withdrawal Bill, and it was acknowledged that there were opportunities for the UK government to make changes to the proposed legislation as it passed through Parliament.

6th meeting of the Joint Ministerial Committee (EU Negotiations), London, 12 December 2017: Governments agree a way forward on EU powers

The 6th meeting of the Joint Ministerial Committee (EU Negotiations), took place in London on the 12 December 2017, bringing together the United Kingdom government with the devolved administrations of Scotland, Wales and Northern Ireland.

After the meeting the UK Government reported that the devolved administrations and the government had made further progress in determining where common frameworks would and would not be required. It was agreed how 142 current EU policy areas would be dealt with as they returned to the UK, with only a minority requiring a legislative framework.

There was now agreement in principle on how the 142 policy areas previously identified would be allocated into the following three groups:

+ areas where no further action was necessary
+ areas that could require new non-legislative arrangements
+ areas that might require a legislative framework

Only in a minority of areas would a legislative framework be required and officials would now carry out further work in these policy areas.

After the meeting, Mark Drakeford, Cabinet Secretary for Finance representing the Welsh Government said 'the Welsh Government cannot recommend that the National Assembly gives legislative consent to the EU (Withdrawal) Bill unless issues surrounding the devolved powers of the Welsh Government and National Assembly for Wales are resolved in amendments which should be agreed before the Bill leaves the House of Commons. The UK Government agreed there should be further specific discussion at official level around potential solutions'.

The Welsh Government had previously said if the European Union (Withdrawal) Bill left the House of Commons without being amended, it would be unable to recommend that the Assembly granted its legislative consent and would consider introducing a Continuity Bill.

The Continuity Bill would transpose EU law that fell within the Assembly’s competence into Welsh law. It would safeguard the Welsh Government’s power over the areas where EU law and devolved competence intersect and seek to retain EU legislation in devolved policy areas. The UK Government accepted that, in transposing EU law into domestic law, the Withdrawal Bill affected devolved matters and that the Assembly’s consent was needed.

Similar comments were made by the Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell MSP.

First Minister of Wales Carwyn Jones described the proposed law in its current form on the 16 January 2018 as 'a fundamental assault on devolution' and threatened to introduce a so-called Continuity Bill to protect Welsh interests before the end of January 2018 unless the 'necessary amendments' were made.

Steffan Lewis, Plaid Cymru AM for South Wales East, moved a Members’ Legislative Proposal in the National Assembly for Wales on the 17 January 2018 that called for a Continuity Bill. Assembly Members (AMs) unanimously backed the Plaid Cymru motion.

The Chancellor of the Duchy of Lancaster David Lidington MP held a bilateral discussion in Cardiff on the 1 February 2018 wth the First Minister of Wales Carwyn Jones AM on the UK’s preparations for leaving the EU. Also attending were the Welsh Secretary Alun Cairns MP and Welsh Government Minister Mark Drakeford AM.

Mr Lidington said the talks were helpful and thanked the Welsh Government for their constructive efforts in trying to find an agreed way forward in relation to the EU Withdrawal Bill that was currently going through the UK Parliament.

Mr Lidington also held related meetings with the Scottish Deputy First Minister on the 1 February 2018. Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell said that the Scottish Government was 'becoming increasingly exasperated by the UK Government’s approach. ... The UK Government must make changes to address these concerns'.

Ahead of the UK Government Cabinet Sub-Committee on EU Exit Negotiations on the 7 and 8 February 2018 the First Minister of Scotland Nicola Sturgeon wrote to the Prime Minister Theresa May to say the Scottish Government and other Devolved Administrations must be able to influence the UK’s negotiating objectives.

David Lidington MP, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, gave a speech on 26 February 2018 at the Airbus factory, Broughton in North Wales.

The speech was part of the UK government's Road to Brexit series of speeches in mid-February 2018 attempting to clarify the government's position on the implications of the UK leaving the EU for the devolved powers within the UK and the future relationship with the EU.

Mr Lidington said that proposed amendments to the European Union (Withdrawal) Bill being debated at the time in Parliament, following extensive negotiations with the devolved administrations, would 'strengthen and enhance' devolution.

Nevertheless, the Scottish and Welsh Governments, working in tandem, introduced into their respective parliaments on the 27 February 2018 emergency EU Continuity Bills to protect devolution and prepare their laws for Brexit.

On the 8 March 2018 the 8th meeting of the Joint Ministerial Committee (EU Negotiations)(JMC(EN)) took place. Following the meeting the UK Government said that Government would table proposed changes to the devolution aspects of the EU Withdrawal Bill to allow Parliament to have an open and informed debate on proposals.

David Lidington MP, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office said that discussions with the devolved governments would continue in the hope of reaching an agreement but the need for Parliament to have a detailed debate on the issues that have been discussed for some time now between the various governments had to be respected. The House of Lords was due to debate Clause 11 of the Bill in just over a week.

The United Kingdom government published on the 9 March 2018 provisional analysis of the returning EU powers that would result in the devolved administrations of the UK receiving extensive new powers as the country departed the EU.

On the 14 March 2018 there was a meeting (at plenary level) of the Joint Ministerial Committee in London. The meeting was chaired by UK Prime Minister Theresa May and attended by her counterparts from Scotland and Wales, plus a senior representative from Northern Ireland.

The three principal agenda items at the meeting were UK security, exiting the European Union, and intergovernmental relations.

Ministers noted the progress that had been made in recent meetings of JMC(EN) but agreed on the need to undertake further work with regards to the role of the devolved administrations in the next phase of negotiations with the EU.
The Continuity Bill (formally called the Law Derived from the European Union (Wales) Bill or LDEU) sought to transfer EU Law in areas already devolved to Wales into Welsh law on the day the UK left the EU. It was introduced by the Welsh Government on the 27 February 2018 (the Scottish Government had introduced a similar bill in Scotland). The aim was to provide legal continuity and stability, regardless of the disagreements over the UK Government’s EU (Withdrawal) Bill.

Stage 2 consideration of Welsh Government’s bill took place in the Committee of the Whole Assembly on 20 March 2018. After an accelerated procedure, the National Assembly for Wales voted by a large majority to back the Bill (39 for, 13 against, with one abstention).

The Bill had been introduced by the Welsh Government because of serious concerns about the UK Government’s EU Withdrawal Bill, which allowed the UK Government to take control of devolved policy areas, such as farming and fishing after Brexit.

Nevertheless, Welsh Ministers were still working to reach agreement with the UK Government on amendments to the Withdrawal Bill. However, as so much time had passed without agreement between the governments, the Welsh Government had no choice but to take forward the Continuity Bill as a fall-back option to protect Welsh devolution.

The Welsh Government would not proceed with the implementation of the Continuity Bill if satisfactory agreement was reached on the UK Government’s EU (Withdrawal) Bill. At that point, Welsh Ministers would recommend the Assembly gave legislative consent to the EU (Withdrawal) Bill and the Continuity Bill could be repealed.

The equivalent bill for Scotland was adopted by the Scottish Parliament on the same day.

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Related Links
ESO: In Focus: Brexit - The United Kingdom and the European Union
Wales: NAW: Blog, 19.03.18: The European Union (Withdrawal) Bill
ESO: Find more information on Wales and the EU Referendum, 23 June 2016
BBC News, 21.03.18: Brexit: Wales EU Continuity Bill passed by AMs
UK: Parliament: House of Commons: Library: Briefing Paper, No.8275 (29.05.18, and periodically updated as appropriate): Legislative Consent and the European Union (Withdrawal) Bill (2017-19): the Joint Ministerial Committee, proposed amendments, and the 'Continuity Bills'
Wales: National Assembly for Wales:Senedd Research: In Brief, 29.03.18: One year to go: Brexit negotiations reach halfway point

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