European Union (Withdrawal) Bill: Implications for devolution Contents

3Delegated powers

23.Following the conversion of EU law into UK law, the UK Government has stated that there will be a need to revise retained EU law to tidy up any anomalies (such as redundant references to EU agencies or other provisions that will no longer be relevant post-Brexit), and to make legislative changes to implement any withdrawal deal agreed by the UK and EU. The European Union (Withdrawal) Bill provides for this by creating delegated powers for UK and Scottish ministers to “correct” retained EU law, and make changes to give effect to any withdrawal deal. The powers for correcting retained EU law are subject to a sunset clause, meaning they would lapse two years after exit day, while the powers for implementing any withdrawal deal would expire on exit day.

24.The delegated powers for Scottish Ministers differ substantially from those delegated to UK ministers. The main differences are:

Consent for use of powers in devolved areas

25.The provisions in the Bill grant powers to both Scottish and UK ministers to make delegated legislation affecting devolved policy areas, but UK ministers are not required to seek consent from the devolved administrations before doing so. Mr Russell, the Scottish Government’s Minister for UK Negotiations on Scotland’s Place in Europe, suggested that delegated powers should not be used in any circumstances to amend certain legislation—such as the devolution settlements—and that the consent of Scottish ministers should be required where UK ministers used delegated powers in devolved areas.41 Professor McEwen agreed that UK ministers should seek consent from the devolved administrations when exercising delegated powers in devolved areas of responsibility,42 and evidence from the Institute for Government stated that they agree with the Scottish Government that “the consent of Scottish ministers should be sought before UK ministers act in devolved areas”.43 The Secretary of State for Scotland agreed that the devolved administrations should be consulted if delegated powers were being used in devolved areas of responsibility.44

26.We welcome the Secretary of State for Scotland’s agreement that the UK Government should consult the devolved administrations before using delegated powers granted by this Bill in devolved areas of responsibility, but believe that consultation is not sufficient. We recommend that UK ministers seek the consent of Scottish ministers before exercising delegated powers in devolved areas of responsibility. We would expect Scottish ministers to seek the consent of the Scottish Parliament before giving their consent.

41 Q67

42 Q39

43 Institute for Government (EUB0001)

44 Q24

16 November 2017