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EU Withdrawal Bill incompatible with devolution powers, MSPs report

9 January 2018

Holyrood’s Finance & Constitution Committee is "not in a position to recommend" legislative consent to the EU Withdrawal Bill now before Westminster, it states in a report published today.

An interim report from the committee, which includes three Conservative MSPs, records its unanimous view that clause 11 of the bill, as currently drafted, is incompatible with the devolution settlement in Scotland.

Under clause 11, powers now exercised in Brussels will transfer in the first place to the UK Government following Brexit day, even if covering matters otherwise devolved, although the UK Government has said it intends to identify at an early stage and further transfer areas which could be "released" from this arrangement.

However the committee concludes that even if clause 11 is designed to be a transitional measure, it fails to respect fully the devolution settlement. It therefore reports that it will not be in a position to recommend legislative consent for the bill unless clause 11 is replaced or removed.

No amendments were made to clause 11 of the bill during the House of Commons committee stage, though the Secretary of State for Scotland has indicated that the UK Government intends to table amendments. The report stage of the bill is due to take place next week.

On the powers conferred on ministers – the so-called Henry VIII powers – the report states: "The committee supports the principle that Scottish ministers should have the same powers as UK ministers in the bill in relation to devolved competences. But we are also strongly of the view that these powers as currently drafted are too broad and must be subject to robust parliamentary scrutiny whether exercised in London or Edinburgh."

It is also "particularly concerned that the use of delegated powers to amend the Scotland Act 1998 would not engage the Sewel convention, circumventing a key principle of the current devolution settlement whereby changes to the powers of the Scottish Parliament by Westminster will normally require the consent of the Scottish Parliament".

Refusal of consent would not prevent the Withdrawal Bill from becoming law, but would open a deep rift between the Parliaments at a time when cooperation will be necessary over the volume of post-Brexit legislation need to convert EU law into UK law.

The committee highlights "the absence of trust in the negotiations between the UK Government and Scottish and Welsh Governments" as a recurring theme in the evidence it heard, and believes that the prospect of Brexit intensifies the need for urgent reform of inter-governmental relations and for an effective system to be put in place as part of the Brexit process.

Committee convener Bruce Crawford MSP commented: "The whole committee is of the view that clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland.

"This view was shared by the vast majority of expert evidence we received on clause 11, as it represents a fundamental shift in the structure of devolution in Scotland.

"The Committee also believes that a resolution to clause 11 is required regardless of whether a way forward on Common Frameworks can be arrived at."

On the use of "common frameworks" to bring about regulatory convergence and policy harmonisation across the UK, Mr Crawford said: "We welcome the commitment from the UK Government that common frameworks will not be imposed. Our committee strongly believes that both the process for agreeing common frameworks and the actual content must be arrived at through agreement, not imposition. We also believe that this process is not solely a matter for Governments and must be transparent and inclusive."

Deputy convener Adam Tomkins MSP added: "All of the committee welcomes the progress that has been made between the UK Government and the devolved Governments in developing an approach to agreeing common UK frameworks and notes that this work is ongoing.

"In particular, members welcome the UK Government’s commitment to respect the devolution settlement."

The committee will produce a final report on the bill prior to the final amending stage in the House of Lords. 

Click here to view the committee's report.


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