How does international law fit in to law-making at the Senedd?
The original Government of Wales Act 1998 contained international provisions familiar to us in the Government of Wales Act 2006 (GoWA). However, today they apply in a very different context.
This article charts their origins in the Senedd’s founding statute to the present day, where international law has replaced EU law as the primary source of external law in the UK.
At the Senedd, this quickly raised new constitutional questions that required seeing the international law parts of the devolution settlement in a new light.
International obligations
International relations are reserved to the UK Government by paragraph 10 of Schedule 7A to GoWA.
Although there is scope within this reservation for the Welsh Government to act in an international capacity, it cannot enter into legally binding commitments. Only the UK Government can do this for the UK, and does so on behalf of the four nations. These are referred to as ‘international obligations’ in GoWA.
International obligations cover legal duties and commitments the UK has agreed to, or universal rules of international law.
Importantly, the implementation and observation of international obligations are devolved, meaning Welsh Ministers must comply and are responsible for putting international law duties in place in devolved areas. The former First Minister, Mark Drakeford MS, explained in 2021 that Welsh Ministers:
are required to take into account international obligations when making decisions, they could face Judicial Review or action from the Secretary of State for failing to do so.
GoWA contains the following mechanisms that hold the Welsh Ministers to account when observing and implementing international law.
The UK Government’s Secretary of State has powers to:
- direct Welsh Ministers to take action to comply with any international obligation; or
- direct them not to take action if it would be incompatible; or
- revoke subordinate legislation made by Welsh Ministers if it is considered to be incompatible with international obligations, or in the interests of defence or national security.
These powers are contained in section 82, which has never been invoked.
Section 101(d) also empowers the Secretary of State to stop the Senedd passing laws that are incompatible with international obligations, or the interests of defence or national security.
Welsh Ministers, including the First Minister and Counsel General, are specifically prohibited from taking action that is incompatible with Convention rights of the ECHR. This duty can be found in section 81 of GoWA.
It is within the Senedd’s competence to assist the UK Government in respect of international obligations and international relations. This can be found in paragraph 10(3) of Schedule 7A to GoWA.
A new development in 2023 saw the Welsh Government cite another provision of GoWA for international matters. Section 62 empowers the Welsh Ministers, the First Minister and Counsel General to make appropriate representations about any matter affecting Wales. The Welsh Government relied on this broad power when it published its analysis of the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) trade agreement.
This approach was supported by the Legislation, Justice and Constitution (LJC) Committee, which the then Minister for Economy, Vaughan Gething MS, welcomed, so we may see this approach again in future.
Although not a legal duty, the Welsh Government’s Ministerial Code places a duty on the Welsh Ministers to comply with international law and treaty obligations.
Brexit shifts the focus
GoWA contained a duty to comply with EU law until it was removed by the EU (Withdrawal) Act 2018 and the EU (Withdrawal Agreement) Act 2020.
The UK-wide removal of this duty meant that international law replaced EU law as the main source of external law in the UK. The UK-EU Withdrawal Agreement and Trade and Cooperation Agreement (TCA) are international law treaties.
At the Senedd, this shift placed a new focus and reliance on GoWA’s international provisions and raised new questions about law-making. The remainder of this article charts the Senedd’s response to this unprecedented development in its 25-year history.
Sewel Convention
Two scenarios quickly emerged as the UK left the EU which raised fundamental questions about the relationship between the Sewel Convention and international obligations.
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The first scenario asked: What happens when Welsh Ministers must put in place international obligations using powers from UK Bills they opposed, and for which the Senedd refused consent? |
This scenario first arose during scrutiny of the Professional Qualifications Bill, now Act, which established a new system for how professional qualifications gained overseas are recognised in the UK after Brexit.
When the LJC Committee asked the former First Minister, Mark Drakeford MS, the above question, he replied that, although the Welsh Government opposed the Bill, Welsh Ministers would nevertheless use its powers “responsibly”. This, he said, is why the Welsh Government and the Senedd “have legitimate and crucial interests” in international obligations in devolved areas.
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The second scenario asked: What happens if the Senedd is asked to consent to UK Bills that could breach international law? |
GoWA places duties on the Welsh Government and Senedd to comply with international obligations, and gives the UK Government powers to intervene if they don’t. But it's silent when the situation is reversed and the compatibility of a UK Bill is in doubt when the Senedd is asked for consent.
This scenario first arose during the Senedd’s scrutiny of the Northern Ireland Protocol Bill, which the UK Government conceded would breach the UK-EU Withdrawal Agreement. The Counsel General, Mick Antoniw MS, explained to the Senedd that:
It creates a particular constitutional problem for us, I believe, if it is in breach of international law, because we will be asked to give consent to the legislation, and whether we can actually consent to something that effectively legitimises unlawfulness.
To address this scenario, the LJC Committee developed a new position. It said:
A decision by the Senedd to consent to the Bill could contribute to a breach of international law and would mean the Senedd acting incompatibly with international obligations, which would be in contrast to the spirit of the devolution settlement.
While it’s ultimately the UK Government’s responsibility to ensure UK compliance, the Committee has since reapplied this recognition of scenarios not covered by GoWA during scrutiny of the Illegal Migration Bill and the Economic Activity of Public Bodies (Overseas Matters) Bill.
Treaty scrutiny
As acknowledged by the former First Minister, Mark Drakeford MS, the implementation of treaties can fall within Senedd competence, place duties on Welsh Ministers and fall on Welsh public bodies to deliver.
In 2019, the Senedd became the first devolved parliament to establish a dedicated treaty scrutiny process. If a treaty laid in the UK Parliament covers devolved areas, or has important policy implications for Wales, Senedd committees assess its impact and report to the Senedd and the House of Lords’ International Agreements Committee.
The process has secured early wins for Senedd scrutiny. It’s obtained information from the Welsh Government which wouldn’t otherwise be provided, ensured this information’s in the public domain and enhanced understanding of the constitutional and practical implications of treaties.
The devolved legislatures can also incorporate treaties directly into their domestic law, a practice reaffirmed by the Supreme Court in 2021. The Welsh Government and the Senedd have garnered recognition from the United Nations for doing so.
Conclusion
Work to better understand international law at the Senedd shows no sign of slowing, and the Welsh Government has responded positively.
For example, it’s agreed to make it clear when UK Bills subject to Senedd consent intersect with international obligations and to include analysis of the TCA where UK-EU matters are cited.
While the international aspects of GoWA were relatively settled during EU membership, the years since Brexit have demanded a new focus on these lesser known parts of our devolution settlement.
Using GoWA in this way for the first time in 25 years has brought new meaning to the place of international law at the Senedd, and has changed law-making in Wales.
Article by Sara Moran, Senedd Research, Welsh Parliament
