The Talking Point #22: The Continuity Bill Row Explained

(Title Image: Cardiff University)

Unless an agreement can be reached, this final fortnight before AMs go on Easter recess will be dominated by the Continuity Bill, which has already started the process of going through the Senedd.

I’m expecting a lot of misinformation to be put out there, particularly by Brexiteers and other opponents of the Bill, so I thought it was worth trying to explain the dispute and the Bill in plain English to address questions people who might not be familiar with the process will want answered.

If you see anything on social media claiming this is an attempt to stop Brexit, share this post.

What’s the difference between the Brexit Bill and the Continuity Bill?

The Brexit Bill is the law being passed by the UK Government to make Brexit happen by March 29th 2019. The Continuity Bill is a Wales-only law (and a similar law has been tabled in Scotland).

In the simplest terms, what is the Continuity Bill trying to do?

It’ll ensure all current EU laws, regulations and powers in policy areas that are already devolved to Wales and the responsibility of the Welsh Assembly and Welsh Government (i.e. agriculture, fisheries, the environment) continue to be the responsibility of Wales after Brexit.

I’ve outlined what’s in it in more detail here, while there’s also a more detailed overview from the Assembly Research Service (pdf).

Why’s that such a big deal? Can’t they let the UK Government take over from the EU?

The UK Government’s Brexit Bill gives them the power to change EU laws retained by the UK after Brexit even if they’re in a devolved policy area. That means they would have the power to change Welsh laws without permission. Wales voted in 2011 to give the Welsh Assembly law-making powers in devolved areas, and the Brexit Bill (as it currently stands) threatens to partially override that referendum result.

What powers are the UK Government trying to “keep” from Wales, Scotland and Northern Ireland?

A full list was released last week (pdf).

There are 24 policy areas relevant to this debate covering: support for farmers (i.e. farming subsidies), genetic modification & organic farming regulations, animal and plant health & welfare, pesticides/chemicals, rights to free healthcare by EU health card holders, fisheries, food safety/labelling & standards, carbon emissions, recognition of professional qualifications and public procurement.

Why do the UK Government want these powers?

The UK Government believes that for some policy areas that used to be the responsibility of the EU there would need to be common systems in place for all the nations of the UK – and the devolved governments tend to agree with them. For example, it would make sense to have UK-wide regulations for transporting animals.

However, the UK Government are going to enforce this before seeking agreement with the devolved governments and before setting out their post-Brexit plans, believing they can “take the powers now and sort it out afterwards”. The devolved parliaments and governments (with the exception of the Conservatives) see it as a “power grab”.

Why haven’t the Welsh & Scottish governments tried to negotiate changes to the Brexit Bill?

They have, but those negotiations have so far failed.

The UK Government promised to amend the Brexit Bill to the satisfaction of both Wales & Scotland but didn’t. There are attempts in the House of Lords to amend the Brexit Bill again.

The Welsh Government have said that, ideally, a deal would be reached. In fact, there were further talks today (14th March 2018). There’s still a chance of a deal but time is running out.

Why is the Continuity Bill being rushed through the Welsh Assembly?

The way powers are devolved to the Welsh Assembly is set to change on 1st April 2018, so it’s important the Bill process is started before then. Also, as a Bill can take from 9 months to a year to go from introduction to approval, the fact Brexit is going to happen only a year from now means the timetable has to be much shorter than usual.

Is the Continuity Bill an attempt by the Welsh Assembly to stop Brexit?

No, it’s even been backed by UKIP AMs.

It won’t stop the Brexit process, neither will it affect the deal the UK will negotiate with the EU. It’s an internal UK matter and is more about devolution than Brexit.

Can the Continuity Bill be challenged by the UK Government?

Yes, via the UK Supreme Court. If it is challenged and the Court decides to rule in the UK Government’s favour, the Continuity Bill won’t become law or would, at the very least, have to be changed.

What happens if it’s challenged and the UK Government wins?

That’s where things get more heated and uncertain.

The UK Government will still need to ask the permission of the Welsh Assembly and Scottish Parliament to pass the Brexit Bill, meaning AMs will get a vote on what’s called a Legislative Consent Motion. Due to the row over powers, the Welsh Government and two Assembly committees have recommended AMs vote against it until the Brexit Bill is changed to their satisfaction.

In practice, these votes aren’t legally binding and the UK Government can ignore them; they ignored a Welsh Assembly vote against the introduction of Police & Crime Commissioners, for example.

However, if they do ignore them, there’s a risk of a crisis – particularly in Scotland, where it could provide the fuel for a second independence referendum if the UK Government are seen to ignore the views of the Scottish Parliament (and also remember that Scotland voted Remain in 2016).

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