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MSPs call for consent rule in devolved areas over EU withdrawal orders

17 November 2017

UK ministers making legislative orders under the EU (Withdrawal) Bill should not be able to make law in devolved areas without the consent of the Scottish Government, a committee of MSPs states today.

The bill converts existing EU law into UK domestic law with effect from Brexit day, giving sweeping powers to UK ministers to make legal changes by order if they think it appropriate. This includes in areas that would be devolved if legislative power did not currently rest with the EU.

In its first report on the bill, Holyrood's Delegated Powers & Law Reform Committee also argues that there must be a process for MSPs to scrutinise Scottish ministers’ decisions before they give consent.

In particular, the committee states that ministers should not use the broad powers conferred on them under the EU (Withdrawal) Bill to make policy changes, and that the Parliament "should be policing that". Moreover, ministers should not legislate in a way that undermines the opportunity for parliamentary scrutiny and public engagement: sufficient information should be provided, and so far as possible with an approriate timescale, having regard to the likely need for UK legislation first.

It further notes that there is specific protection for the Northern Ireland Act 1998, and calls for a similar provision in relation to the Scotland Act 1998.

The committee records its concerns at the breadth of the powers conferred on ministers, but "reluctantly accepts that the unprecedented task of modifying domestic legislation to preserve the statute book on leaving the European Union, and the short timeframe in which it is to be done, necessitates broad powers" – even though "In any other circumstances the conferral of such wide powers would be inconceivable".

However, such powers "should only be available where ministers can show that it is necessary to make a change to the statute book, even if they cannot show that the particular alternative chosen is itself necessary"; and ministers should consider further whether the powers should be "based on a necessity test rather than an appropriateness test... it should be possible to find some wording which would restrict ministers to using the power only where necessary, while still enabling a choice to be made between competing solutions".

Committee convener Graham Simpson MSP commented: “We are strongly of the view that the bill should be amended so that UK ministers can only legislate in devolved areas with the consent of devolved governments.

“However, there needs to be a process for the Scottish Parliament to scrutinise Scottish Ministers’ decisions before consent is given.

“Legislation can be taken through by different routes and we want Governments to co-operate when deciding how to handle these decisions and we want legislatures to be able to scrutinise those decisions."

He added: “Good law will only be made where Parliament can scrutinise it and where the public has a proper opportunity to shape it."

Click here to access the committee's report, which is on a legislative consent memorandum lodged by the Scottish Government as the bill makes provisions in relation to devolved matters. The bill is also being considered by Holyrood's Finance & Constitution Committee.

  • A report by the House of Lords Constitution Committee, also published today, warns that the Sanctions and Anti-Money Laundering Bill, the first Brexit Bill to be scrutinised by the House of Lords, contains inappropriately broad powers for ministers. The bill is intended to provide a new, long-term legal basis for ministers to make secondary legislation concerning sanctions, money laundering and terrorist financing, and is expected to begin committee stage in the House of Lords on Tuesday 21 November.


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