LSW response to the European Union (Withdrawal) Bill

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The Learned Society of Wales has responded to the joint consultation on the European (Withdrawal) Bill and its implications for Wales, run by the Constitutional and Legislative Affairs Committee and the External Affairs and Additional Legislation Committee.

The response highlights the vital need for real consultation between governments to achieve agreed and implementable outcomes.

The  Society understands and shares the logic that there should be legal certainty with regard to retained EU law after British withdrawal from the EU, and argues that given the devolution of powers, the devolved nations should have a say in such decision making.

The Acts providing for devolution within the UK assumed British membership of the EU and the devolved legislatures have been required to comply with EU law in exercising the powers devolved to them. It is those Acts which have determined the distribution of powers within the UK.

In creating a body of retained law, to be legislated by Westminster for the UK as a whole, the Bill amends the powers already devolved to the three nations. Moreover it is not clear whether this is a temporary measure or one which would permanently change the distribution of powers. It is therefore a matter of considerable constitutional import.

Currently EU law creates an internal market among 28 states, and by definition an internal market within the UK. After withdrawal there will need to be an internal market in the UK. Achieving this and delivering the necessary policy coherence between the four nations must take account of the constitutional and political considerations.  This underlines the vital need for real consultation between governments to achieve agreed and implementable outcomes acceptable to all. It is not apparent that this has been the case in the drafting of this Bill.