The terms of the UK’s exit from the EU will apply equally to all the nations of the UK and the view from Wales is complex. The UK Government is leading the negotiations with the EU but since the turn of the century it no longer has an exclusive role in governing the UK. The distinct requirements of the devolved administrations are emerging.
All the constitutional Acts of Parliament devolving powers to Wales have been made within the framework of European legislation. The latest Wales Act received Royal Assent only in January this year. This Wales Act provides a shift in law-making powers from a narrow ‘conferred powers’ model where there were defined subjects to a broader ‘reserved powers’ model approach where the restrictions are defined instead. The approach adopted in this Wales Act will no doubt throw up some problems around the extent of powers (there were three referrals to the Supreme Court under the Government of Wales Act 2006 and the basis of the decisions in those cases mean that there is plenty of room for disagreement under the new Act).
As we approach a future with no overarching European law the impact of the terms of the withdrawal of the UK and the repatriation of policy and law-making in those areas which operate within an EU regulatory framework currently raises the concern that Wales’ priorities, in so far as they do not align with the UK as a whole, will not be defended.
Areas of EU policy such farming, fisheries, the environment and economic development are of particular interest in Wales. At the point of exit from the EU, when EU regulatory and administrative frameworks cease to apply, these powers will continue to be devolved in Wales. Similarly, a number of reserved powers in which Wales has an active interest, and which directly impact on devolved policy areas, such as competition policy, employment law and international trade, will continue to be the function of the UK Government and Parliament. Even though current EU law is to be preserved in the first instance, the ensuing activity to re-legislate will inevitably lead to a challenging environment for both the UK and Welsh governments.
The Welsh Government (Labour) has published a White Paper which was developed in conjunction with Plaid Cymru, the Party of Wales. The paper sets out six areas to be addressed in the Brexit negotiations, they are: the single market and international trade; migration; finance and investment; constitutional and devolution issues; social and environmental protections and values; and transitional arrangements.
A particular issue for Wales is the constitutional change that will flow from leaving the EU. The Welsh Government advocates the establishment of a constitutional convention to review constitutional arrangements and practice within the UK. Further, these changes require a new approach to the UK’s governance structure that reflects the interdependencies and interests between devolved and non-devolved. As EU frameworks provide an element of consistency across the UK internal market there will be a need for new UK-wide frameworks which will require wholly new inter-governmental machinery.
The Wales Office of the Law Society of England and Wales represents the profession across the National Assembly for Wales, the Welsh Government and Welsh civic society. We have held and will be holding events to explore the implications for Wales as well as developing solutions.