Holyrood constitution committee will not recommend legislative consent to EU Withdrawal Bill

Bruce Crawford MSP - Image credit: Scottish Parliament

Holyrood’s Finance and Constitution Committee has unanimously agreed not to recommend that the Scottish Parliament give legislative consent to the UK Government’s EU Withdrawal Bill.

Clause 11 of the EU Withdrawal Bill is incompatible with the Scottish devolution settlement, the cross-party Scottish Parliament committee has concluded after taking evidence from experts.

Committee convener Bruce Crawford said that the clause would be a “fundamental shift” in the structure of devolution.

The committee said that even if Clause 11 was designed as a transitional measure, it failed to fully respect the devolution settlement and the committee could not recommend legislative consent unless it was replaced or removed.

Clause 11 would restrict the Scottish Parliament from making changes to legislation derived from the EU after Brexit, even if it relates to devolved areas.

The bill refers to these as ‘retained EU law’ – a new legal concept introduced by the bill – and the committee’s report notes that the evidence heard by the committee suggested it would confuse the boundary between devolved and reserved issues and it will be difficult to identify which areas of UK have derived from EU law, particularly as they diverge after Brexit.

Crawford said: “The committee is unanimous in its view that it is not in a position to recommend legislative consent to the EU Withdrawal Bill.

“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.”

However, Crawford welcomed the commitment from the UK Government not to impose common UK frameworks on the devolved nations. 

He added: “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 said: “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.”

It is convention that the UK Government should ask the devolved parliaments for legislative consent in the case of any bills that would affect devolved areas – although it is not legally obliged to take account of any refusal to give consent.