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23rd April 2018

BREXIT: Another cause of distraction

In the last few months, both the Scottish Parliament and the Welsh Assembly have been working through ‘Continuity Bills’, the essential purposes of which include the preservation of EU law in areas of devolved competencies and enabling the devolved governments to ensure that they retain control of devolved areas of law after the UK’s withdrawal. Ever since the referendum result, this has been a battleground in waiting and unsurprisingly therefore, as it is perfectly entitled to do, the UK Government has now referred both Continuity Bills to the Supreme Court to decide whether the Bills would be outwith the powers of their respective legislatures if passed into law – questions of legislative competence. The UK Government may not be especially troubled about some areas of devolved competency, but others such as Fisheries policy, are another matter entirely.
Put shortly, this is a power struggle and the stakes are high on all sides. Given the potentially significant implications of a Supreme Court decision on the “Continuity Bills” for the course of parliamentary proceedings in respect of the European Union (Withdrawal) Bill, we can expect vigorous negotiations between the three governments to be well under way, with the object of finding an acceptable compromise.

Whatever the legal merits of the arguments on legislative competency and the prevailing raging din of political discourse, this further constitutional battle is not without real world significance for UK plc. Centrally, it is diversionary and its outcome uncertain – underlying themes of everything Brexit. While this and all the other tricky aspects of preparing the UK for the EU departure gate continue to exercise the Government’s attention, it is fanciful to think that it is in a position to apply the resources required to deliver a positive agenda to strengthen the economy and support UK plc to achieve that. It has far too much on its plate and there are just too many ‘ifs and buts’. We therefore continue to wait on an uncertain future (putting the legendary British reputation for patience to the test) and get on with the job at hand.

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information, please contact Dominic on 01604 233233 or click here to email him
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