Cardiff and South East Wales Junior Lawyers Division

An analysis of the impact of Article 50 on the Welsh devolution settlement – By Cat Connor

I recently analysed the High Court’s decision in R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin), that the UK Government cannot trigger Article 50 without consulting the UK Parliament. The 4-day appeal to the Supreme Court has just concluded and the Counsel General for Wales, Mick Antoniw AM, appeared as an intervener on Thursday 8 December. This article analyses his case for Wales and the effect that triggering Article 50 will have on the Welsh devolution settlement.

The background to Welsh devolution

I previously recapped the roles of the UK Parliament as the legislature and the UK Government as the executive. However, the UK is a collection of nations and the way in which they are governed is determined by devolution. Devolution is the transfer of power from the UK Parliament to the devolved administrations of Scotland, Wales and Northern Ireland.

The Welsh devolution settlement is set out in the Government of Wales Act 2006 (GOWA 2006), which created the National Assembly for Wales (the Assembly) and the Welsh Government. These bodies perform the roles of the legislature and the executive in relation to Wales, and exercise the powers given to Wales by the UK Parliament.

The Counsel General for Wales acts for the Welsh Government as its chief legal advisor and its representative in court proceedings.

Why is the Counsel General intervening in R (Miller)?

The Counsel General is arguing in support of the High Court ruling that the UK Government cannot use the prerogative powers to trigger Article 50. This is firstly because of the constitutional principle that legislation enacted by Parliament – and especially constitutional legislation – cannot be set aside using the prerogative powers. The devolution settlement in Wales and the powers of the Assembly and the Welsh Government, all of which are governed by GOWA 2006, will be amended by triggering Article 50. Parliamentary consultation is therefore required. This is secondly because triggering Article 50 under the prerogative powers would circumvent the Sewel Convention, which governs the relationship between the UK Parliament and the Assembly.

How triggering Article 50 amends the powers of the Assembly under GOWA 2006

The Counsel General argues that three statutory powers of the Assembly would be altered by the triggering of Article 50. These are as follows.

  1. Section 108(6) of GOWA 2006 prevents the Assembly from making legislation which is incompatible with the rights, powers, liabilities, obligations and restrictions created by or arising under the EU Treaties. Triggering Article 50 will remove the ‘EU Treaties’ upon which subsection 108(6)(c) relies, depriving this provision of its effect. The Counsel General argues that the prerogative powers cannot be used to set section 108(6)(c) aside.
  1. Section 109 of GOWA 2006 limits the extent to which the UK Government may alter the powers of the Assembly, in that:
    1. Parliamentary approval is required (section 109(4)(a))
    2. Only the powers in Schedule 7 to GOWA 2006 may be altered (section 109(1))

The Counsel General argues that if the UK Government triggers Article 50 using its prerogative powers, and sets aside section 108(6)(c), it cuts across the statutory procedure created by Parliament in section 109. It subverts Parliament’s intention to oversee the alteration of the Assembly’s powers, and it bypasses the limitation set by Parliament on the powers which may be altered. This is because section 9 could not be used to alter section 108(6)(c), as section 108 is not within Schedule 7. It would be odd if something which could not be done with Parliament’s approval could be done without its consent.

  1. Section 113 of GOWA 2006 confers a power on the Assembly to reconsider a Bill which has been referred to the European Court of Justice on the grounds of incompatibility with EU law. This statutory procedure will disappear once Article 50 is triggered and it cannot be replicated by domestic legislation. The Counsel General argues that the prerogative powers cannot be used to set section 113 aside.

How triggering Article 50 amends the powers of the Welsh Government under GOWA 2006

The Counsel General argues that two statutory powers of the Welsh Ministers, as members of the Welsh Government, would be altered by the triggering of Article 50. These are as follows.

  1. Section 80(8) of GOWA 2006 prevents the Welsh Ministers from making legislation which is incompatible with EU law. Triggering Article 50 will remove the ‘EU law’ upon which subsection 80(8) relies, depriving this provision of its effect. The Counsel General argues that the prerogative powers cannot be used to set section 80(8) aside.
  1. Section 59 of GOWA 2006 is used by the UK Government to transfer the power to the Welsh Ministers to implement EU law. The Welsh Ministers have used this power to make provision in areas such as protection of public health, environmental damage and protection, waste management, public procurement and building construction. Triggering Article 50 will remove the ability of the Welsh Ministers to be given this power by the UK Government. The Counsel General argues that the prerogative powers cannot be used to set section 59 aside.

How triggering Article 50 bypasses the Sewel Convention

The Sewel Convention is a fundamental rule of law and key to the Welsh devolution settlement. It states that the UK Parliament will not normally legislate in an area which is dealt with by a devolved nation without its consent. This envisages a dialogue between the legislatures of the UK Parliament and the Assembly. Triggering Article 50 will modify the powers of the Assembly and so that dialogue must go ahead. Whilst the UK Parliament could decide to legislate without the consent of the Assembly, the UK Government cannot make this decision on its behalf using its prerogative powers. The Counsel General argues that to do so would circumvent the Sewel Convention.

What next?

The Counsel General made his case before the Supreme Court on Thursday 8 December 2016. The Supreme Court has provided transcripts, which can be accessed here: https://www.supremecourt.uk/news/article-50-brexit-appeal.html

The Counsel General’s written submissions, upon which this analysis is drawn, can be accessed here: http://gov.wales/about/cabinet/cabinetstatements/2016-new/counselgeneralwrittensubtosupremecourt/?lang=en.

The judgment of the Supreme Court is expected in the New Year.

 

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