EU Withdrawal Bill Update: Scottish Parliament Constitution Committee refuses to recommend legislative consent

Category: Other human rights treaties and mechanisms

16th January 2018

The Scottish Parliament's Finance and Constitution Committee has unanimously agreed not to recommend that legislative consent is given to the EU Withdrawal Bill. This is due to the effect the Bill shall have on the structure of the devolution settlement. Even if the Scottish Parliament refuses to give legislative consent this shall not "block" Brexit.

The concerns of the cross-party committee centred on controversial Clause 11 of the Bill which relates to devolution. After hearing from experts, the Committee concluded that Clause 11 represented a "fundamental shift" in the structure of devolution and therefore they would be unable to recommend legislative consent being given unless the provision was amended or removed. The interim report of the Committee can be read in full here.

Clause 11 of the Bill made headlines last September when the Scottish and Welsh Governments labelled it a Westminster "power-grab". Currently drafted, Clause 11 prevents the Scottish Parliament from making changes to legislation derived from the EU after Brexit, even where it falls into devolved areas. Instead, all powers returning from Brussels shall be concentrated at Westminster and Whitehall, remaining there unless and until they are transferred onwards to the devolved nations. In areas where a "common framework" is considered necessary, the relevant powers shall not be transferred.

The Finance and Constitution Committee heard from various experts in the drafting of its report. A key concern was that Clause 11 conflicts with the current structure of the devolution settlement. Under the current arrangements, everything that is not contained on the list of reserved matters is devolved. By contrast, Clause 11 envisages a more piecemeal approach: all EU-derived law shall be considered "reserved" regardless of its subject matter; individual powers shall then be conferred to the Scottish Parliament where this is considered appropriate. There are fears that this combination of a "reserved powers model" and a "conferred powers model" will be complex and confusing, making it difficult to tell when something is devolved and when it is reserved. Accordingly, Clause 11 has been described by Professor Michael Keating (University of Aberdeen) as "the first significant rolling back of devolution since the process started twenty years ago".

The Committee's refusal to recommend legislative consent is, however, an interim position. It stated that a final recommendation would be given once amendments to Clause 11 had been made. These amendments were promised by David Mundell in a statement on 6th December 2017. However, on the same day the Committee's interim report was published (9th January 2018), Mr Mundell announced that the UK Government's amendments to Clause 11 would not be published due to unexpected delays. The debate surrounding the clause shall therefore be delayed until the Bill reaches the House of Lords, significantly restricting the potential for meaningful debate on the matter. Accordingly, the Finance and Constitution Committee's final recommendation on legislative consent shall not be given for some time.

Of course, even if the Scottish Parliament refuses to give legislative consent, this cannot "block" Brexit. The Westminster convention of obtaining legislative consent from the Scottish Parliament before legislating on devolved matters is a political one and does not have legally binding effect. Therefore, even if the Scottish Parliament refused to give legislative consent to the Bill, the UK Government could nevertheless push ahead with it. This may cause political turmoil but there would be no legal grounds on which to challenge the UK Government's actions.

 

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