EU Bill 'doesn't reflect reality of devolution'

Members of the Scottish Parliament must come together to ensure that Parliament retains its hard-fought for ability to make laws in devolved areas, Minister for UK Negotiations of Scotland’s Place in Europe Michael Russell said today. 

Following publication of the EU Withdrawal Bill, Mr Russell has written to all MSPs to explain the implications of the Bill and to set out the Scottish Government’s position.

Mr Russell said that Scotland risks having to fight for powers that should rightfully belong to the Scottish Parliament, since the UK Government’s EU (Withdrawal) Bill contains no promise to protect these.

The UK Government acknowledges that the Bill requires the legislative consent of the Scottish Parliament and the National Assembly of Wales, but without an explicit guarantee in the bill of powers going directly to devolved administrations, both governments have indicated that they will not recommend that consent be given.

Despite lifting the restriction on the UK requiring compliance with EU law, the Bill does the following to devolution:

• imposes new restrictions on the Scottish Parliament and Government
• provides Scottish Ministers with only limited powers to make corrections to EU law in devolved areas
• reserves to the UK Government alone control of the scope and extent of any UK-wide frameworks required to replace EU laws

Michael Russell, Minister for Negotiations on Scotland’s Place in Europe, said:

“Scotland will stand the best chance of keeping control of its devolved powers if the Scottish Government can act with the full backing of our national Parliament.

“The First Minister has already called on Members of the Scottish Parliament to join us now, with no equivocation, to back demands for the democratically elected Scottish Government to be at the table in the UK's Brexit negotiating strategy. But we also need to make a stand against the UK Government retaining powers that rightfully should come to Scotland once repatriated from the EU.

“Scotland has been able to make its own decisions on Health, Justice, Education and many more since 1999 and we simply ask for a promise from the UK Government, to be written in the EU (Withdrawal) Bill, that Scotland – along with Wales and Northern Ireland – receive the powers that are justly theirs.”  

Text of Mr Russell’s letter to MSPs below:

EUROPEAN UNION (WITHDRAWAL) BILL

Today the UK Government introduced the European Union (Withdrawal) Bill to the House of Commons.

This is a complicated and significant piece of legislation.  It has fundamental implications not only for the UK’s membership of the EU, but also for the powers and role of the Scottish Parliament. I am therefore writing to all Members to draw it to your attention.

The published version of the bill can be found via the following link: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf

The Bill does four main things. Firstly, it repeals the European Communities Act 1972. Secondly, it saves and incorporates EU law into domestic law as it exists on exit day, which it refers to as “retained EU law”.  Thirdly, the bill gives UK Ministers powers in reserved and devolved areas to correct deficiencies in retained EU law arising as a result of withdrawal, prevent or remedy breaches in any international agreements arising from withdrawal and implement the withdrawal agreement.  The Bill also gives Ministers from the devolved administrations their own versions of these three powers, although those are subject to a number of detailed restrictions.  Finally, the bill imposes a new constraint on all of the devolution settlements which prevents the devolved administrations from modifying retained EU law, in policy areas that are otherwise devolved, unless what they are doing is in line with pre-existing EU law.

The Scottish Government has serious concerns about the bill in a number of areas. 

Firstly, and most fundamentally, the competence restrictions imposed by the bill are asymmetrical. The bill lifts from the UK Government and Parliament the requirement to comply with EU law, but does the opposite for the devolved legislatures by imposing a new set of strict restrictions - restrictions which make no sense in the context of the UK leaving the EU.

To put it simply, in reserved areas that are currently subject to EU law, the UK parliament regains the ability to legislate without restriction. In devolved areas, the Scottish Parliament does not - it will only be able to do so in future if the UK government grants permission by Order in Council.

The result of those asymmetrical competence restrictions, will be to leave the ultimate decisions on UK-wide frameworks on matters that are otherwise devolved to the UK Government and Parliament.  While the Scottish Government recognises that common frameworks to replace EU laws across the UK may be needed in some areas, the competence in matters that are otherwise devolved should revert to the Scottish Parliament, enabling the scope and content of any UK-wide frameworks to be agreed between the UK Government and the devolved administrations, rather than imposed.

We are also concerned that the scheme in the bill for correcting devolved law is unlikely to be workable in its current form. It creates a complex division of decision-making responsibility that does not reflect the reality of devolution.  In particular, it empowers UK Ministers to make changes in devolved policy areas without ANY involvement of either the Scottish Government or the Scottish Parliament. This includes policy areas, such as the Scottish justice system, where the Scottish Parliament has primary responsibility.

We have made clear to the UK Government that we are prepared to work with it to ensure that there is coherence and stability for both Scotland and the rest of the UK on the day the UK withdraws from the EU.  We will take forward discussion of the bill and the UK Government’s proposals for implementation on that basis. However, we have also made clear that, in light of the concerns set out above, the Scottish Government would not be able to support the bill as it currently stands.

The Scottish Government’s concerns are shared by the Welsh Government.  Members may wish to note that a joint statement was made by the First Ministers of Scotland and Wales setting out the position of the two governments on the bill.