Since the ‘Great Repeal Bill’ of rhetoric became the European Union (Withdrawal) Bill of reality, its most contentious element – at least on the domestic front – has been the impact it’ll have on devolution. Tod Davies looks at how the countries of the UK are disputing where the powers that Brussels currently administers will transfer to on leaving day.

Downing Street has made clear that the powers will, at least at first, return to Westminster.  Welsh First Minister Carwyn Jones has called this a ‘naked power grab’. Both he and Scottish First Minister Nicola Sturgeon have said that they won’t back the Bill in its current form.

The dispute

The Welsh, Scottish, and Northern Irish devolved governments currently have ‘spheres of legislative competence’. They can make laws in certain areas – like agriculture, health, environment, and housing – as they see fit, without the Government in Westminster getting involved.  They still have to abide by EU regulations though, with the EU setting limits on everything from fishing quotas to state aid limits, packaging regulations to farm subsidies.

When Brexit finally occurs, the EU’s authority to set these limits will end. Power will return to the UK.

Areas like agriculture have already been devolved entirely to Wales. So, you might think it would make sense for Wales to wield the power to set limits – giving it more freedom to make laws, and set regulations.

But, the current draft of the withdrawal Bill simply substitutes Brussels for London. London will now set the limits.

Wales and Scotland – who were under the impression they had sole authority to make laws in areas already devolved to them – have protested this. The Bill would, in effect, go back on this – with the First Ministers of Wales and Scotland calling it ‘an attack on the founding principles of devolution’.

What can they do about it?

Legally speaking, very little.

The current arrangement (called the ‘Sewel convention’) is that Westminster won’t legislate on any matter that interferes with devolved areas (which the Bill clearly does), unless they get prior consent from that devolved government. Obtaining this consent is a matter of constitutional convention; however, it is not a matter for the courts.

The famous Gina Miller case – on whether Downing Street had to obtain Parliament’s approval before triggering Brexit – established that this year. As well as ruling that Gina Miller was right, and the government was wrong, the Supreme Court also ruled on the limits of the Sewel convention, stating that it was merely a political understanding – not a legal obligation. In other words, Westminster can, legally, simply ignore Wales and Scotland.

Politics though, is another matter entirely. Westminster has never overridden a devolved body that has refused to give consent – and to do so for the first time on such high-stakes would have serious political ramifications.

To help allay fears, the government promised that changes to the Bill will be made in the report stage (which is now) but it has been admitted that the changes won’t be added until it passes through the House of Lords. Damian Green’s departure – just before Christmas, amidst allegations of pornography on his work computer – may have caused the timetable to slip, as he’d been leading the talks with the devolved administrations.

And so…

The UK Government, when embarking on the devolution journey in 1997, probably never intended to devolve the entirety of a particular area to that devolved body, as it was already confined by EU law.

This is an important point. EU law affects the nations of the UK equally – so even if an area is devolved to Wales, there is still some degree of uniformity in the UK. Everyone is constrained by the same EU limits.

Westminster worries that allowing Wales and Scotland to wield the EU’s former powers independently of England, as well as each other, would lead to a UK that is misaligned, messy, probably unworkable, and, may ultimately lead to the breakup of the United Kingdom. Such concerns are perfectly understandable and reasonable, especially considering the recent separatist movement in Barcelona.

How the government chooses to word the withdrawal Bill will have much riding on it. The government has the unenviable task of reconciling the demands of the devolved administrations with its own overarching duty to serve the United Kingdom as a whole.