Henry VIII and why Senedd committees still say “No” to the Brexit Bill

(Title Image: Spartacus Educational)

Constitutional Affairs Committee: The Welsh Government’s Legislative Consent Memorandum on the European Union Withdrawal Bill (pdf)
External Affairs Committee: Interim Report on the Legislative Consent Memorandum (pdf)
Both published: 18th December 2017

The “Brexit Bill” which will formalise the UK’s exit from the European Union is currently going through its committee stages at the UK Parliament. As the Bill involves some areas that are devolved, by convention it requires the permission of the Senedd by AMs voting in favour of a Legislative Consent Memorandum (LCM).

The Welsh Government (as well as the Scottish Government) and the committees are presently minded to reject the LCM because of concerns over how the Brexit Bill will encroach on devolved powers. In practice, despite the UK Government seeking “permission”, they can ignore the LCM – though doing so would likely start a constitutional row.

Here’s why the two committees are still recommending AMs reject the LCM.

1. Disagreement over what parts of the Bill require the Assembly’s permission

The Welsh Government maintain that practically everything in the Brexit Bill requires the consent of AMs, while the UK Government argue that areas such as the retention of EU law (which directly affects devolved areas) and the implementation of the Brexit withdrawal agreement don’t need the Senedd’s rubber stamp.

The Constitutional Affairs Committee believe the principle of legislative consent needs to be fully respected and if the Senedd rejects the LCM and the UK Government presses ahead regardless it would “damage the UK constitution”, with there being a much stronger case for constitutional reform as a result.

2. Henry VIII Powers

The Brexit Bill – as it’s currently drafted – enables the UK Government to make regulations in retained EU law governing devolved areas without the Assembly’s permission. It will also allow the UK Government to amend Welsh laws (Acts) without permission – known as “Henry VIII powers” because of his habit of changing laws by royal decree instead of through parliament.

While, by convention, the UK Government doesn’t do this, the option of doing it will remain and we have no idea what the UK Government could do if they took that option up.

The Bill will also freeze the Assembly’s powers to only being able to make laws in relation to EU areas as if Wales were still a member; this isn’t extended to the UK Parliament, meaning that parliamentary supremacy is being “revived at the expense of devolution”.

3. The Welsh government wants the Brexit Bill amended

The Welsh Government and committees would like to see amendments made which would:

  • Remove any restrictions on the devolution settlement and ensure the Welsh Government is responsible for correcting all aspects of EU law in devolved areas.
  • Prevent the UK Government amending aspects of EU law relating to Wales unless reserved.
  • Prevent the Welsh or UK governments from amending the Government of Wales Act 2006 under delegated powers.
  • Ensure the Assembly can set its own scrutiny arrangements.

Some of these amendments had been tabled in the House of Commons but were rejected, so the only opportunities for them to be made are in committee, in later readings or in the House of Lords.

It’s unlikely the committees or Welsh Government will recommend approving the LCM until these key amendments are made. Expect to hear more about this over the coming months.

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