The Devolution of Legal Powers to Wales in the Context of the UK's Membership of the European Union

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What will it mean for the law in Wales if the decision is taken for the UK to leave the EU? And if it decides to stay? Over the past two years, the UK Government has undertaken a review of the way in which powers are shared between the EU and the UK, across the range of policy areas in which the EU can act. The purpose of the Balance Of Competences review is to assemble a body of evidence to help decide whether or not continued membership is in the UKs national interest. But the consideration of what is in the national interest may look very different from Cardiff, Belfast or Edinburgh than it does in London. Devolution has meant that the devolved administrations have the power to adopt their own laws on certain matters, and differences are starting to emerge across the UK in the laws that may apply. Policies may have very different impacts across the different regions of the UK. To adopt its own legislation, Wales, as with the other devolved powers, needs to have been given the competence to do so. It also has to ensure it is complying with the requirements of EU law when it legislates. Whilst there may be (un)popular images of EU law requiring exactly the same rules to be applied across all the countries of the Union, scope for differences certainly exist. The purpose of this project is to examine the Balance of Competences review from the perspective of devolved power. Does the account of the law, and of who does what, in the review, clearly reflect what is in the competence of the devolved administrations, and what remains in the power of the central UK political institutions? Is it clear from a devolved perspective what the consequences of any returning of legal powers to the UK from the EU would be? When would Wales be able to maintain the laws it already has, and when would this only be possible if a new devolution settlement was agreed? Could, legally, Wales be able to do what Plaid Cymru leader Leanne Woods suggests when she argues that 'If powers are to be repatriated, there should be specific attention as to which parliament takes up those repatriated powers, and not the automatic default that everything goes to Westminster. For example, on social measures, Wales should be allowed to 'opt-in' even if England chooses not to do so.'The project will seek to bring clarity to the allocation of legal competences, and highlight the manner and extent to which the relationship Wales has with the EU is shaped through the machinery of Westminster and Whitehall. As well as offering impartial independent explanations of the legal frameworks that apply across a number of key policy areas, the programme will also undertake new research on the way the interests and concerns of the devolved powers may be fed into the EU decision making process. This is through an investigation into the recently acquired powers for national parliaments to make representations to the EU Commission that proposed laws should be handled at a national or regional level instead of at EU level, as their objectives can be achieved without the need for EU legislation. The research will explore how this 'subsidiarity review' is operating within the UK, looking at the relationship between the Welsh Assembly, the other devolved parliaments, and the UK Parliament.