The EU Withdrawal Bill and devolution

The publication this week of the Repeal Bill has major implications for the powers of the Scottish Parliament.

The UK Government hopes the Bill will provide a smooth and orderly transition of EU powers into UK legislation. Recent publications by the International Public Policy Institute (on agriculture and fisheries, and environmental law) and through the new Scottish Centre on European Relations (Tobias Lock’s “The Great Repeal Bill and the Challenge of Bringing Laws Home”) show that removing the EU frameworks will have significant impact on how the Scottish Parliament operates, especially in key areas such as agriculture, fishing, environmental law, university research, justice, student exchange, and business and trade support.

The key stated aim of the historic new Bill is to ensure that, wherever practical, the same rules and laws apply after the UK’s withdrawal from the EU as now. The Bill will repeal the European Communities Act 1972 and convert EU law into UK law. It will also create temporary powers for Parliament to make secondary legislation. It will allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Article 50.

Crucially for the powers of the Scottish Parliament, the Bill seeks to replicate the common frameworks that currently apply across the EU within UK law.   The UK has made it clear that for a transitional period it aims to maintain the scope of devolved decision-making powers immediately after exit, but that there will then be intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed. The Scottish Government have claimed that the Repeal Bill is a “power grab” by Westminster.  It is conceivable that both might be right.  The publication of the draft Bill tells us why.

Power grab – or orderly power-sharing?

At present Scottish Ministers have full legislative competence for all matters not reserved in Schedule 5 of the Scotland Act 1998.  This includes most fisheries, environment and agriculture legislation.  However, Scottish Ministers must also at all times observe EU Law, under Section 29 of the Scotland Act.  This second requirement is the key mechanism.

The way Scotland Act legislation works is that within the UK, the Scottish Parliament is fully responsible for devolved matters as long as it observes EU law.  At present, there are common frameworks within the UK as well as across Europe – as by definition, the Scottish Government and the UK Government, acting as the government of England, have both faced a requirement to observe EU law.   Through the Withdrawal Bill, the UK Government is making a positive and conscious choice to maintain these frameworks.  And likewise it has signaled its intention that the UK Parliament should lead on the legislation.  But to do so, the UK Government needed to draft a way to oblige the Scottish Parliament to maintain such frameworks.

The requirement on the Scottish Parliament and Ministers to observe EU Law has been relatively uncontroversial since devolution.   So, some think that any proposal to replicate it within UK frameworks will also be uncontroversial.  We are not so sure.  There has been some anticipation of how the UK Government would replace this requirement to observe EU Law in future.  Contrary to what is often said, the key issue for the Repeal Bill is not whether or how it passes the parcel of formerly EU law from Brussels to Edinburgh.  Devolved responsibilities for agriculture, fisheries etc are already the responsibility of the Scottish Parliament. The key issue for the Repeal Bill is how the UK Government will legislate to restrict the Scottish Parliament and Ministers from making their own decisions on how they implement their own devolved responsibilities after Brexit.

The Bill makes it all a little clearer.

  1. It outlines in some detail how the UK Parliament will create what will be called “retained EU law” in UK legislation.  This transfers current EU law onto the UK statute book, with a mechanism to make amendments to “deal with deficiencies” where any legislation simply wouldn’t work without EU institutions or processes.
  2. Section 11 of the Bill amends the key Section 29 in the Scotland Act to stop the Scottish Parliament from making any changes to retained EU law, even if it is own competence under the Scotland Act.  So, for example, the Scottish Parliament could not normally legislate on any aspect of retained EU law in devolved areas like fisheries.
  3. It outlines mechanisms whereby the UK and Scottish Ministers may act jointly to “deal with deficiencies” in retained EU law in devolved areas.
  4. The Schedules to the Bill outline the restrictions on the Scottish Parliament to ensure compliance with international treaties and trade arrangements.
  5. No new powers are devolved (at this stage).

While this new requirement on Scottish Parliament and Ministers to observe UK frameworks may seem no different to the status quo, it will feel very different.  At present, the Scottish Parliament and Ministers observe the same law as all Member States, set collectively by the Council of Ministers.  In future, the Scottish Parliament and Ministers will be obliged to observe retained UK Law, set by the UK Government, and observe all requirements of UK trade agreements, negotiated by the UK Government. Whether this will enhance or diminish the Scottish Parliament is a matter of opinion, but such a change has profound implications for the governance of Scotland.

The Repeal Bill says little on how the Scottish and UK Governments will interact on a day to day basis on so called UK Frameworks in future.   It is not clear whether common frameworks could be based on shared decision making across all governments within the UK.  Nor how disputes will be resolved.  And the issue of common UK frameworks is not just about legislation.  They will also need to set the financial basis for replacing current EU payments.  At present, EU funding of CAP and CFP expenditure in Scotland comes directly from UK receipts from the EU.  The challenge for Scotland is that currently some 16% of UK agricultural spending and some 12% of UK receipts of Horizon 2020 research spending is spent in Scotland.

The UK Government has made it clear that it will seek the approval of the Scottish Parliament under the Sewel Convention for the Repeal Bill.  The initial reaction from the Scottish and Welsh Governments repeats their concerns about the new restrictions on devolved legislatures.   Given its breadth and constitutional importance, a Scotland-wide debate is surely needed to make sure it leads to an outcome which wider Scottish civic society can support.

First published by IPPI at Strathclyde University

 

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