European Union (Withdrawal) Bill: Implications for devolution Contents

2Repatriated powers and common frameworks

6.When the UK leaves the EU responsibility for all decision-making which previously happened at an EU level will return to the UK. This will cover decision-making in areas which are reserved to the UK Parliament—such as customs, movement of EU citizens and consumer protection—as well as in areas which are devolved to the Scottish Parliament—such as agriculture, fisheries and environmental standards.

7.The European Union (Withdrawal) Bill, as introduced, would convert existing EU law into UK law on the date of the UK’s exit from the EU, and restrict the Scottish Parliament from legislating contrary to this body of law. This would give the UK Parliament exclusive competence over retained EU law, which would cover all areas of decision-making being repatriated from Brussels. The UK Government has stated that the restriction on the Scottish Parliament’s competence is intended to be a transitional arrangement,3 and the Bill includes a process for releasing policy areas from the restriction, which requires the approval of both Houses of Parliament and the Scottish Parliament.

8.These provisions would effectively maintain the current powers of the Scottish Parliament, replacing the restriction on the Scottish Parliament legislating contrary to EU law with a restriction on legislating contrary to retained EU law, until the restriction was lifted for specific policy areas by way of an Order in Council.

The repatriation of powers and discussions about common frameworks

9.A number of witnesses expressed concerns about the approach of the Bill to powers returning from the EU to the UK.4 These centred around the restriction of the Scottish Parliament’s competence to legislate on areas of decision-making being repatriated from Brussels. The Scottish Government has described the Bill as a “naked power grab”,5 and Michael Russell MSP, the Scottish Government’s Minister for UK Negotiations on Scotland’s Place in Europe, objected to the “asymmetrical” approach the Bill takes, by lifting from the UK Government and Parliament the requirement to comply with EU law, but doing the opposite for the devolved legislatures, which he said made “no sense” in the context of the UK leaving the EU.6 Mr Russell argued that any powers not currently reserved to Westminster should be repatriated to Holyrood.7 Professor Jim Gallagher told us that “where the Bill goes wrong is in failing to respect the assumption that, unless there is a good reason to reserve something, it should be devolved”,8 and Professor Michael Keating, Director of the Centre on Constitutional Change, stated that the Bill raised problems “about the assumption that powers should be devolved if they are not expressly reserved”.9

10.The UK Government has stated that the approach taken by the Bill is intended to allow for discussions to take place about where common UK frameworks might need to apply to policy areas being repatriated from the EU.10 The UK’s membership of the EU has meant that common frameworks have applied across the UK because of EU policy in several areas—including agriculture, competition, consumer protection, environmental standards and fisheries—which harmonise standards and policy across the EU. The UK Government has said that it will be important to ensure that the “stability and certainty” created by these frameworks is not compromised following the UK’s withdrawal from the EU, and that new UK-wide frameworks may be required to protect the freedom of businesses to operate across the UK single market and to enable the UK to strike free trade deals with other countries.11 To achieve this, the UK Government has stated that it will:

The UK Government does not accept the suggestion that this Bill represents a “power grab.” The Secretary of State for Scotland told us that he was “disappointed by the repeated power grab suggestion”,13 and has stated that the Bill will “maintain the scope of devolved decision making powers immediately after Exit” and that “the Scottish Parliament and Scottish Government will not lose any of their current decision-making powers”,14 but that significant new powers would go to the Scottish Parliament.15 The UK Government’s White Paper, Legislating for the UK’s withdrawal from the EU, said it expected that the outcome of this process would be “a significant increase in the decision making power of each devolved administration”,16 and the UK Government has stated that it hopes to “rapidly identify […] areas that do not need a common framework and which could therefore be released from the transitional arrangement”.17 This indicates that the UK Government believes decisions on which powers to devolve cannot be taken until it has been decided which areas will be covered by a UK framework.

11.There is broad agreement that, following the UK’s withdrawal from the EU, there will be a need for common approaches across the UK in some policy areas being repatriated from the EU.18 Professor Jim Gallagher told us that “There is a good case for saying that many of the things that are currently uniform across the UK, because of EU law, should continue to be uniform across the UK for similar reasons”,19 and both Michael Russell MSP and David Mundell MP, Secretary of State for Scotland, agreed that there should be frameworks to govern some areas of policy being repatriated from Brussels.20 A Report by the Lords EU Committee on the devolution aspects of Brexit similarly concluded that “certain ‘common standards and frameworks’ will be needed to maintain the integrity of the UK internal market post-Brexit”.21

12.There was not, however, universal acceptance that the desirability of common UK frameworks justified the approach the Bill takes to powers being repatriated from Brussels. Responding to the UK Government’s rationale for the approach to repatriated powers—that it will enable decisions to be made about where common UK frameworks will and will not be required, and therefore which powers can be released to the devolved legislatures—Professor Gallagher stated that even where there is a strong case for coordination of policy, “There is no need, and no constitutional case, to reserve EU retained law in relation to these matters.”22 He has argued that in areas of devolved policy the UK Government is acting as the government of England on these issues, and that “It is not proper for the government of England to direct the other UK government over matters within devolved responsibility”.

13.The Secretary of State for Scotland told us that he thought Brexit would result in significant new powers going to the Scottish Parliament,23 and that he hoped the process for determining which areas of decision-making being repatriated from Brussels would go directly to the Scottish Parliament and which will be the subject of a UK-wide framework could be “as expeditious as possible”.24 He stated that his position was to come from a “presumption of devolution” and would look to “persuade others that matters should be devolved unless there is a good reason”.25

14.Although Mr Mundell said he did not want to pre-empt the discussions which were currently taking place, he was confident that “there will be areas where we all agree that these powers should come directly to the Scottish Parliament”,26 and that he hoped that “a range of powers” could be transferred at the point the UK leaves the EU.27 Mr Mundell told us he believed there had been significant progress on discussions regarding how powers and responsibilities currently exercised in Brussels would be returned to the United Kingdom and on to Scotland.28

15.It has been suggested that the Bill could include a schedule of which powers are going to be devolved to the Scottish Parliament on the day the UK leaves the EU, and which are not. The Secretary of State for Scotland told us that he did not think it was the Government’s position to have a schedule attached to the Bill, but that the Government would want to be as clear as possible about what would be happening with powers being repatriated from Brussels.29 Giving evidence to the Scottish Parliament’s Finance and Constitution Committee on 8 November 2017, Robin Walker MP, Parliamentary Under Secretary of State for Exiting the EU, stated that it was “quite possible” that the clause restricting the Scottish Parliament competency would be “substantially reduced through agreement between the governments”.30

16.We note the concerns which have been raised about the approach this Bill takes to devolved areas of responsibility, and welcome the Secretary of State for Scotland’s evidence that he is “coming from a presumption of devolution position” and that he hopes “a range of powers” can be transferred directly to the Scottish Parliament at the point the UK leaves the EU. We agree with the Secretary of State for Scotland that discussions to identify where common frameworks need to be retained in the future and where common frameworks covering the UK are not necessary should be “as expeditious as possible”.

17.We recommend that the UK Government agrees with the devolved administrations what areas should be subject to common frameworks and which ones can be devolved. These discussions should be based on the premise, set out by the Secretary of State for Scotland, that all powers should be devolved unless there is good reason to reserve them. The outcome of these discussions should be published in time for Third Reading, so that Members have clarity about how provisions regarding Scotland’s devolution settlement will apply in practice, before the Bill finishes its Commons stages. Once agreement has been reached the UK Government should bring forward a plan to devolve all powers not covered by those frameworks to the Scottish Parliament.

Agreement of common frameworks

18.Although there is a general consensus that common frameworks will be required in some areas of policy being repatriated from the EU, it is not yet clear how these frameworks will operate or how they will be agreed. We heard that there are a number of mechanisms by which a common framework could be established, including memoranda of understanding, joint legislation or an Act of the UK Parliament agreed by the devolved administrations.31

19.A central point emphasised in our evidence was that common frameworks should be agreed between the UK Government and devolved administrations, rather than imposed. Mr Russell, the Scottish Government’s Minister for UK Negotiations on Scotland’s Place in Europe, was clear that any frameworks “should be agreed between the parties”, and that governance of them should be “on the basis of co-decision making”,32 and Professor Nicola McEwen, Professor of Politics at the University of Edinburgh, told us that however common frameworks were established, she thought that the Bill should include a requirement for the consent of the devolved administrations in relation to any frameworks.33

20.The Lords EU Committee’s recent Report on Brexit and devolution similarly concluded that “Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives”,34 and added that “A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments”.35 The Welsh Government has suggested that a UK Council of Ministers could be established, operating along lines similar to the EU Council of Ministers, to negotiate common rules and frameworks where it is agreed that these are desirable.36

21.The Secretary of State for Scotland agreed that any common frameworks should be agreed with the devolved administrations, stating:

A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom.37

This reflects the agreement by the Joint Ministerial Committee on European Negotiations—which brings together UK ministers and ministers of the devolved administrations—that common frameworks “will respect the devolution settlements and the democratic accountability of the devolved legislatures” and that it “will be the aim of all parties to agree where there is a need for common frameworks and the content of them.”38 Mr Mundell noted the importance of having a “rule book” which would set out how common frameworks would be developed and how they would work in the future,39 adding that what common frameworks might look like and how they would operate would depend on any transitional deal between the UK and the EU, as well as the UK’s future relationship with the EU.40

22.We agree with both the Secretary of State for Scotland and the Scottish Government’s Minister for UK Negotiations on Scotland’s Place in Europe that UK-wide common frameworks in currently devolved policy areas should be reached by agreement between the UK Government and the governments of Scotland, Wales and Northern Ireland, where relevant, and not imposed by Westminster. We recommend that the UK Government work with the devolved administrations to agree these common frameworks, and what new intergovernmental machinery will be needed to support them. Any common framework must require the consent of the governments of Scotland, Wales and Northern Ireland, where relevant, with discussions taking place on the basis that all parties are equal partners. This would reflect the Secretary of State for Scotland’s statement that “A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom”. We also recommend that the UK Government and the devolved administrations agree a mechanism by which disputes can be resolved in the event that common frameworks cannot be agreed.


3 Q10, Oral evidence taken on 24 October 2017, Work of the Scotland Office, HC 376, [References to this transcript hereafter state the question number, followed by “Work of the Scotland Office”]

4 Qq3, 5

5 Scottish Government, Defending devolution, 19 September 2017

6 Scottish Government, EU Bill ‘doesn’t reflect reality of devolution’, 16 July 2017

8 Q3

9 Q5

11 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017

12 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017

13 Q10, Work of the Scotland Office

14 Scottish Parliament’s Finance and Constitution Committee, Correspondence from the Secretary of State of Scotland to the Convenor, 13 July 2017

15 Q7, Work of the Scotland Office

16 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017

18 Q17, Q46, Scottish Government, The European Union (Withdrawal) Bill, 12 September 2017

19 Q17

20 Q46, Work of the Scotland Office

21 House of Lords European Union Committee, 4th Report of Session 2017–19, Brexit: devolution, HL Paper 9, para 267

22 Scottish Parliament’s Finance and Constitution Committee, Written evidence from Professor Jim Gallagher

23 Q7

24 Q3

25 Q14

26 Q7, Work of the Scotland Office

27 Q11, Work of the Scotland Office

28 Q3, Work of the Scotland Office

29 Q15, Work of the Scotland Office

30 Scottish Parliament’s Finance and Constitution Committee, Oral evidence on Wednesday 8 November 2017

31 Qq59–60

32 Q46

33 Q29

34 House of Lords European Union Committee, 4th Report of Session 2017–19, Brexit: devolution, HL Paper 9, para 268

35 House of Lords European Union Committee, 4th Report of Session 2017–19, Brexit: devolution, HL Paper 9, para 272

36 Welsh Government, Brexit and Devolution, June 2017

37 Q46, Work of the Scotland Office

39 Q16, Work of the Scotland Office

40 Q31, Work of the Scotland Office




16 November 2017