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Scottish ministers seek amendments to EU Withdrawal Bill

13 September 2017

The Scottish Government cannot recommend that the Scottish Parliament give its consent to the European Union (Withdrawal) Bill in its current form, Mike Russell, the Minister for UK Negotiations on Scotland's Place in Europe has told MSPs.

Mr Russell made his announcement as ministers published a memorandum setting out their reasons for not putting a legislative consent motion to the Parliament on the bill as it stands. 

On Monday night the bill passed its second reading vote in the House of Commons with a majority of 36, but it is expected to face a testing time at committee stage as pro-EU Conservative MPs press for amendments.

The memorandum explains the key objections to the bill as concerning the competence of the Scottish Parliament and Government; the respective powers for UK and Scottish Ministers to alter domestic law, potentially including UK ministers' powers to amend the Scotland Act, or the residence rights of EU nationals in the UK; and the repeal of the Charter of Fundamental Rights.

It "rejects in principle" the approach that the UK Parliament and UK Government should have power to legislate in relation to policy areas which are the responsibility of the Scottish Parliament and the Scottish Government, in ways previously constrained by EU law. "The Scottish Government believes that on withdrawal the Scottish Parliament should be in exactly the same position as the Westminster Parliament: able to act within its area of competence in the way it sees fit", the memorandum states. "The Scottish Government does not accept that the Scottish Parliament and Government, and the other devolved legislatures and executives, should, for an indeterminate period following withdrawal, have their competence defined as if it were the day before the UK withdrew from the EU."

These objections "are so fundamental that the Scottish Government cannot recommend that the Scottish Parliament gives consent, even conditionally, to the bill in its current form".

Scottish ministers also believe the bill's approach, cutting across the structure of the Scotland Act, to be "artificial and impractical", and one that will become "increasingly unsuitable" for determining legislative competence.

The memorandum adds: "The Scottish Government considers that the legislative competence of a Parliament should be clear, robust and as certain as possible to avoid legal risk and minimise the possibility of litigation and should reflect the policy responsibilities allocated to the Parliament under the devolution settlement. The approach taken in the bill does not provide a test of legislative competence that meets this objective. A better approach would be to remove clause 11 in its entirety and retain the current test of the legislative competence of the Parliament."

In his statement Mr Russell confirmed that a series of amendments, jointly agreed with the Welsh Government, will be published shortly. If no agreement is reached on the content of the bill, ministers will consider other available options for legislation in the Scottish Parliament to prepare devolved laws for the impact of EU withdrawal.

He continued: “We have frequently made it clear that, despite our wish to maintain EU membership, we recognise our obligation to prepare Scotland as best we can for what might transpire. Indeed Brexit is going to be such a dramatic, damaging upheaval to the UK’s legal systems and to our laws that it is imperative that we do everything we can to prepare responsibly for the consequences of EU withdrawal.

“The only appropriate way to divide powers between the Governments is this: powers in relation to policy areas which are devolved must be for devolved ministers and devolved legislatures. Thereafter, there will be space, time and willingness to agree cooperation over the shared use of these powers in a way which respected the responsibility of this Parliament to hold to account those who make decisions in devolved areas.”

Replying to questions, Mr Russell confirmed that Scottish ministers wish to see improved scrutiny of regulations made under the bill, including if they are given additional powers of their own.

Opposition parties accepted the Scottish Government's approach, with the exception of the Conservatives, for whom Jackson Carlaw accused ministers of "ceaseless hyperbole of a so-called power grab, which the UK Government has repeatedly and expressly stated is neither desired nor intended". However he offered, and Mr Russell accepted, bilateral discussions "to explore the concerns further, to understand the various remedies and positions and to work where we can to do all that we feel able to do to secure an LCM that the Scottish Government will have confidence in placing before this Parliament".

Click here to view the memorandum; and here to view the official report of the parliamentary statement.

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