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MSPs launch probe into Scottish ministers' Brexit delegated powers

11 September 2017

Powers to be conferred on Scottish ministers under the European Union (Withdrawal) Bill are under review by a Holyrood committee.

The Delegated Powers & Law Reform Committee today issued a call for evidence as it prepares to consider the delegated powers in the bill.

Due to be voted on today at second reading in the House of Commons, the bill sets out to enable ministers to make orders amending EU law that is part of UK law, to make it workable after Brexit day. Scottish ministers are given equivalent powers to UK ministers in areas within current devolved competence.

However the bill has been controversial for the breadth of the powers it confers – enabling ministers to make any provision that could be made by Act of Parliament, the so called "Henry VIII" clause – and for its failure to provide any scrutiny by Parliament beyond that given to other ministerial regulations. The Scottish and Welsh Governments have also protested at powers coming back from Brussels going in the first place to UK ministers, even in areas otherwise devolved.

MSPs will become involved as a legislative consent motion has to be put to the Holyrood Parliament since the bill affects devolved areas of law. While it is expected that the Finance & Constitution Committee will be the lead committee for consideration of the legislative consent motion, the Delegated Powers Committee’s role in considering the bill encompasses the new powers to be conferred on ministers, including the questions:

  • whether it is appropriate for powers to be delegated to Scottish ministers;
  • whether the powers are too widely drawn, or could they be expressed so as to make it clearer how they will be exercised;
  • whether the powers reflect the policy intention as expressed in the delegated powers memorandum;
  • whether the powers are subject to an appropriate level of parliamentary scrutiny;
  • whether Scottish ministers should have special powers to act in situations of urgency such as are conferred on UK ministers, under which an instrument can come into force immediately but will lapse after 28 days unless approved by Parliament within that time;
  • whether Holyrood should have a role in scrutinising legislation UK ministers are empowered to make in devolved areas, as no such role is given to it at present;
  • whether Holyrood should have a role in scrutinising the choice of whether powers are exercised by UK or Scottish ministers, or by both acting jointly, where the bill provides for such alternative ways to exercise power.

The committee is keen, however, to hear views on all aspects of the bill that are within its remit.

Convener Graham Simpson MSP commented: “We want to hear views on whether it’s appropriate to confer these powers on Scottish ministers, whether they are appropriately framed and workable and whether the parliamentary scrutiny procedures are sufficient.”
Click here to view the call for evidence. The closing date for responses is Friday 6 October 2017.

The committee will take oral evidence on the bill throughout September and October, and will consider what further oral evidence it will take based on the written evidence it has received.


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