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Legislative Consent?
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The leaders of the Scottish and Welsh governments have convened and (surprise surprise) have concluded that "cannot recommend that the Scottish Parliament and National Assembly give their necessary legislative consent to the Bill." As a result, they are proposing amendments.
What is the legal truth of this "legislative consent"? At what stage would the two bodies need to be consulted (if at all) and what would happen if they refused to approve the EU Withdrawal Bill?
The leaders of the Scottish and Welsh governments have convened and (surprise surprise) have concluded that "cannot recommend that the Scottish Parliament and National Assembly give their necessary legislative consent to the Bill." As a result, they are proposing amendments.
What is the legal truth of this "legislative consent"? At what stage would the two bodies need to be consulted (if at all) and what would happen if they refused to approve the EU Withdrawal Bill?
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'The government could still insist on pressing ahead – but doing so would underline the divisions within the United Kingdom'
'Asked about the risk of a constitutional clash over the devolution aspects of Brexit, May’s spokeswoman said there was no plan for what might happen if Scotland or Wales refused legislative consent.
“That’s very pessimistic. We’re optimistic,” she said of such a scenario. Pressed on whether there was a contingency plan for this, she said: “Not that I’m aware of, no.” '
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'Asked about the risk of a constitutional clash over the devolution aspects of Brexit, May’s spokeswoman said there was no plan for what might happen if Scotland or Wales refused legislative consent.
“That’s very pessimistic. We’re optimistic,” she said of such a scenario. Pressed on whether there was a contingency plan for this, she said: “Not that I’m aware of, no.” '
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Quite interesting. Suggests they do have some legal purchase:
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In that unlikely event then let there be a constitutional crisis . The UK exits, the assemblies can go argue their case to stay with the EU, and the best of luck to them. No doubt the assemblies will have plans for border control and customs on routes to England also.
More nonsense from those determined to try to thwart the democratic will of the people, or be a pain in the rear failing that.
More nonsense from those determined to try to thwart the democratic will of the people, or be a pain in the rear failing that.
well I agree the SGB are doing their best water it down but what I cannot comprehend and what no one seems to be able to answer. What relevance is any of the parliaments? Parliament have now approved A50, A50 is invoked, so what possible effect can parliament now have? surely it's done deal, whatever the deal is?? There is no mechanism to undo A50 so surely all the parliaments are irrelevant, I cannot seem to get an explanation out of anyone as to what is the point of any sort of parliamentary approval of any sort of "deal" - the clock is ticking, we are out in March 2019 come what may there is no reversal process and we'll have whatever deal is agreed between EU and UK by then. I cannot see where any of the parliaments are relevant.
It is necessary to repeal or amend the European Communities Act (ECA) 1972, which is the statute giving domestic effect to EU law in the UK. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland.
Therefore, although the ECA 1972 may be repealed, this would not bring an end to the domestic incorporation of EU law in devolved nations.
the UK government stated (pre vote!) that it would not normally legislate on a devolved matter without the consent of the devolved legislature (see The Sewel Convention). There now seems to be a scenario where this will not be carried out (what….another U turn…surely not).
It could be argued that the inclusion of the Sewel convention in the Scotland Act 2016 makes it impossible to ignore, giving it legal force.
Therefore, although the ECA 1972 may be repealed, this would not bring an end to the domestic incorporation of EU law in devolved nations.
the UK government stated (pre vote!) that it would not normally legislate on a devolved matter without the consent of the devolved legislature (see The Sewel Convention). There now seems to be a scenario where this will not be carried out (what….another U turn…surely not).
It could be argued that the inclusion of the Sewel convention in the Scotland Act 2016 makes it impossible to ignore, giving it legal force.
Presumably because none of what you said is necessarily true. Article 50 notification is not definitively "irreversible" -- since, for example, the article specifies that the notification to withdraw is to be "in accordance with its own constitutional requirements", or because the withdrawal proper is in two years from notification "unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period", both of which would imply firstly that:
(a) yes, parliament can be involved in the process because that's what the UK constitution would require at various stages, and
(b) yes, the notification isn't final, because the extension could for example by made indefinite if all agreed.
I am not, of course, a definitive legal authority, and it should be stressed too that I regard the idea of an "indefinite extension" (ie not leaving) as more of a technicality than something to aim for. Still, it does seem to me that regarding Parliaments, both the UK-wide and the Scottish/Welsh/Northern Irish parliaments as now irrelevant, is simply mistaken.
I also find it rather troubling how in their desperation to leave the EU, hardcore Brexiters seem to forget that the "Br" of Brexit means "British" and not just "English". The UK as a whole is leaving; the UK as a whole should be happy, by and large, with what that means and the shape that leaving takes, and if we push through the process with utter disregard for the other member countries of the UK then we may not even have time to enjoy Brexit before it's "Break-up" and yet another constitutional mess.
(a) yes, parliament can be involved in the process because that's what the UK constitution would require at various stages, and
(b) yes, the notification isn't final, because the extension could for example by made indefinite if all agreed.
I am not, of course, a definitive legal authority, and it should be stressed too that I regard the idea of an "indefinite extension" (ie not leaving) as more of a technicality than something to aim for. Still, it does seem to me that regarding Parliaments, both the UK-wide and the Scottish/Welsh/Northern Irish parliaments as now irrelevant, is simply mistaken.
I also find it rather troubling how in their desperation to leave the EU, hardcore Brexiters seem to forget that the "Br" of Brexit means "British" and not just "English". The UK as a whole is leaving; the UK as a whole should be happy, by and large, with what that means and the shape that leaving takes, and if we push through the process with utter disregard for the other member countries of the UK then we may not even have time to enjoy Brexit before it's "Break-up" and yet another constitutional mess.
There should be proper consultation with the devolved powers of the UK. That is only right BUT the overriding factor is what is best for the U.K.
Each devolved parliament will be looking mainly at their own nest egg. The UK government will be looking at all.
What all the parliaments, including Westminster, should be doing is a duel investigation on in or out.
I actually believe there should be no 'in a bit'. We should be out and whatever we would like to remain involved in should be negotiated as they are with any other nation. If we are to pay a higher price or expected to shoulder more of a burden that other 'out' nations then the EU are not being reasonable.
This quibbling about bits of what we want to be in costing a fortune is just smoke and mirrors.
The important bits, such as security, nuclear stuff and citizenship should be the main priority for the future. Trade, and how much it will cost is negotiable IF the EU are reasonable.
The ECHR and ECOJ should have no more power over the UK than it does for any other non EU country. There is absolutely no reason it should be otherwise.
Each devolved parliament will be looking mainly at their own nest egg. The UK government will be looking at all.
What all the parliaments, including Westminster, should be doing is a duel investigation on in or out.
I actually believe there should be no 'in a bit'. We should be out and whatever we would like to remain involved in should be negotiated as they are with any other nation. If we are to pay a higher price or expected to shoulder more of a burden that other 'out' nations then the EU are not being reasonable.
This quibbling about bits of what we want to be in costing a fortune is just smoke and mirrors.
The important bits, such as security, nuclear stuff and citizenship should be the main priority for the future. Trade, and how much it will cost is negotiable IF the EU are reasonable.
The ECHR and ECOJ should have no more power over the UK than it does for any other non EU country. There is absolutely no reason it should be otherwise.
...yes but the OP refers to the "EU withdrawal Bill" , implying that we need one. Let say we do, what if it fails, are we somehow not leaving the EU? I don't think so so it's a pointless activity. I accept that the Parliament needs to pass bills to adjust for brexit fair enough but what possible usage is there for a "withdrawal bill" the contents of which matter not.
I think the principal purpose of the EU withdrawal bill is to manage the fallout from all of the EU law that would otherwise stop applying but that is also rather vital to keep on the statute books -- at least until we can sort out what is genuinely worth keeping and what is not. The bill makes provisions for ministers to make the changes themselves if needed, to try and get things moving fast as possible; and also has a fair amount to say about what the devolved governments can and can't do.
I think that the Bill assumes that we will be leaving on "Brexit Day" -- I think that's the term used -- and that's a fair enough assumption. I suppose the relevance it has to leaving (or not) is that if the Bill is not agreed to in time then it's rather like moving into a new house and finding that the delivery van isn't due for another couple of weeks. Not fun, so I'm told. In that case, maybe the UK government would petition for a delay so that they could have the house in order before formally withdrawing, or maybe not, but as far as I'm aware the plan is still to leave the EU in March 2019. Whether or not we are "ready" is another matter. I think it makes sense to be as "ready" as possible before leaving, and yes that could involve ensuring that there's consensus among the various members of the UK before pushing ahead.
I don't see why that's so controversial. If leave we must, isn't it worth trying to get it right, rather than get it quickly?
I think that the Bill assumes that we will be leaving on "Brexit Day" -- I think that's the term used -- and that's a fair enough assumption. I suppose the relevance it has to leaving (or not) is that if the Bill is not agreed to in time then it's rather like moving into a new house and finding that the delivery van isn't due for another couple of weeks. Not fun, so I'm told. In that case, maybe the UK government would petition for a delay so that they could have the house in order before formally withdrawing, or maybe not, but as far as I'm aware the plan is still to leave the EU in March 2019. Whether or not we are "ready" is another matter. I think it makes sense to be as "ready" as possible before leaving, and yes that could involve ensuring that there's consensus among the various members of the UK before pushing ahead.
I don't see why that's so controversial. If leave we must, isn't it worth trying to get it right, rather than get it quickly?
I imagine the purpose of resisting the withdrawal bill isn't to stop Brexit but make political capital from it.
What I find unclear, however, is how cast-iron the requirement that devolved assemblies give their consent to laws which touch on their responsibilities. On the surface, this seems to be a result of convention - which can in theory be ignored at any time. But, on the other hand, a huge amount of what passes for UK constitutional law is custom and convention... so where does that leave us?
What I find unclear, however, is how cast-iron the requirement that devolved assemblies give their consent to laws which touch on their responsibilities. On the surface, this seems to be a result of convention - which can in theory be ignored at any time. But, on the other hand, a huge amount of what passes for UK constitutional law is custom and convention... so where does that leave us?
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