Why Wales was right to say yes to the UK's Brexit Bill

This article by Stephen Clear, Lecturer in Law, Bangor University was originally published on The Conversation. Read the original article.

Both Wales and Scotland have acknowledged the need to prepare UK laws for EU withdrawal, yet they have taken very different stances on how this can be achieved. While the Welsh Assembly has agreed to the UK government’s proposed Brexit Bill, the Scottish parliament has said no.

The Welsh government has said their position was based on negotiations that “strengthens devolution and protects the UK”. By contrast, Scotland’s refusal was based on the bill being evidence that the UK government could not be trusted with devolution.

Not all in Wales agree with the move, however. Leanne Wood, leader of Plaid Cymru, accused Welsh ministers of “bowing down to the Tories at Westminster and supporting their power grab”. But, despite making a move that isolates Scotland in its fight against Westminster, did Wales actually get it right?

Political possibilities vs. legal reality

There are a few important points to note here. Drawing strict comparisons between the Welsh and Scottish position can lead to artificial discussion. The job of the Welsh Assembly is to represent Wales’s interests, which are not necessarily the same as what the Scottish parliament feels is right for Scotland. The EU referendum result, party allegiances of Welsh Assembly Members (AMs) compared to the Scottish MSPs, and the policies of the SNP compared to Welsh Labour, are all clear evidence of these differences.

In addition, while politically sensitive, Wales and Scotland cannot constitutionally stop Brexit – contrary to some headlines. The unequivocal legal reality is that the powers that devolved legislatures enjoy stem from Westminster. And within all devolution acts, it is made explicitly clear that the UK parliament retains supremacy on constitutional matters.

The relationships between Westminster, Holyrood and the Senedd have, arguably, been one of relative mutual compliance to date, based on respect for legislative competences and political sensitivities. If Westminster had occasion to pass a law affecting a devolved area, then negotiations have traditionally taken place to agree a legislative consent motion (LCM) – not legally binding but politically respected. So the UK parliament could very well proceed with the Brexit Bill without agreement from Wales and Scotland.

In the absence of a legal solution, Wales pursued a political one through negotiation. Their initial concerns related to the “constitutionally insensitive” clause 11 of the bill. This would see 24 powers return from Brussels to Westminster in areas that the Welsh Assembly and Scottish parliament have traditionally had competence over (subject to Brussels’s precedence).

Following nearly a year of discussions, Wales has compromised, temporarily agreeing that these powers can be held by Westminster for an intermittent period of time. Their reasons were not to effect UK trade, and to achieve regulatory alignment for the whole of the UK, until a new legal framework is established.

Why Wales was right

The laws and powers governing the relationship between Westminster and Brussels predate the UK’s devolved governments by 26 years. The powers that are allegedly coming back from Brussels, are ones that would not have been previously envisaged when drafting the devolved legislation from 1998 onwards. Owing to Brussels’s oversight, it was not possible – at the time of establishing the devolved parliaments – to have a situation where the UK’s regions could pursue major regulatory differences.

So, as the UK tries to enter new international markets, it is within Wales’s interests to want to protect its key industries within the 24 areas of control (such as agriculture and fisheries) by feeding into a whole UK policy approach.

Alternatively, if the UK government agrees a new relationship with the EU that maintains market access, these internal constitutional disputes may be redundant. If the UK does agree some form of access, it is likely that compulsory regulatory alignment with the existing EU requirements will be a prerequisite for the whole UK anyway (making Welsh or Scottish divergence an impossibility).

Principles of Welsh devolution at stake?

So the question becomes one of principle. Should Wales accept legislative oversight from Westminster in devolved areas in the future (as opposed to Brussels)?

Oversight has always been there for all the devolved regimes. The position that Wales has adopted is a pragmatic one. The undeniable reality of any negotiation is compromise and respect, and for the time being, the Welsh government appears to be content that, politically speaking, London is willing to listen and make adjustments.

That is not to suggest that Wales should concede on all matters within their devolved competence. As David Rees AM, chair of the Welsh External Affairs and Additional Legislation Committee put it, Wales should still be cautiously concerned that the Assembly’s ability to pass laws in devolved policy areas could be constrained by the UK parliament in the future. Even where the Assembly has refused consent for constraints to be imposed.

But given the current harshness of the extreme alternative – whereby Wales would have limited legal influence by refusing the LCM – the negotiated agreement and political advantage for Wales, at least for now, does seem the right solution.

Publication date: 18 May 2018