European Union (Withdrawal) Bill: Implications for devolution Contents

4Legislative consent

27.Because the European Union (Withdrawal) Bill directly affects the powers of the Scottish Parliament, as well as legislation which relates to devolved areas of responsibility, the UK Government has stated that it will seek consent for the legislation from the Scottish Parliament.45 This is in line with the Sewel Convention, which states that the UK Parliament will not normally legislate on matters which have been devolved without seeking the consent of the Scottish Parliament. As confirmed by the Supreme Court in the Miller case,46 the convention is a political consideration and does not prevent the UK Parliament from legislating in devolved areas if not consent has been given. The Court did however note the importance of the Convention in “facilitating harmonious relationships between the UK Parliament and the devolved legislatures”.

28.The Scottish Government has stated that it cannot recommend legislative consent be given to the Bill as it is currently drafted. Mr Russell told us that “The Bill contains two principal defects, to which we cannot agree”,47 which were:

The Scottish Government has published suggested amendments to the Bill to address its concerns. These amendments would:

Mr Russell has said that “if people suggest that there is a different way to achieve the objectives that we have set out” he would be happy to discuss these.50

29.A number of witnesses highlighted the importance of the Sewel Convention, and the desirability of this Bill proceeding on the basis of consent.51 Professor Gallagher told us that the prospect of the Bill going ahead without the consent of the Scottish Government was “highly undesirable”.52 Mr Russell stated that if consent was not given he thought that the UK Government should withdraw the parts of the Bill for which consent has not been granted.53 While acknowledging the possibility of the Bill proceeding without legislative consent, Mr Russell told us that this would “be a unique circumstance” which would “create a great difficulty between the Governments and the Parliaments”.54 Future Brexit legislation which is likely to be subject to legislative consent includes Bills, announced in the 2017 Queen’s Speech, on Fisheries and Agriculture, as well as any legislation which implements a transitional arrangement between the UK and EU.

30.The Secretary of State for Scotland told us that the UK Government wanted legislative consent for this Bill, and that he was confident it would be secured.55 He told us that the UK Government would look at all amendments which had been tabled, and that an “amendments forum” of UK and Scottish officials would be meeting in October to discuss amendments to the Bill.56 Mr Mundell stated that, by the time the House of Commons considered the Bill in Committee, the UK Government would be able to set out their clear position in relation to the amendments put forward by the Scottish Government.57

31.The principle underlying the Sewel Convention—that the UK Parliament will not normally legislate on devolved areas without the consent of the Scottish Parliament—is an essential element of the UK’s constitution, and we welcome the recognition of its importance by both governments. We welcome the work already being undertaken by the UK and Scottish governments to come to an agreement on the content of this Bill. We recommend that the UK and Scottish governments continue their efforts to secure agreement on those clauses of the Bill which affect devolved areas of responsibility.

45 Department for Exiting the European Union, Exiting the EU with certainty, 13 July 2017

47 Q42

48 Q43

49 Scottish Government, Defending devolution, 19 September 2017

50 Scottish Parliament’s Finance and Constitution Committee, Official Report, 20 September 2017

51 Qq31, 35

52 Q35

53 Q62

54 Q62

55 Q35, Work of the Scotland Office

56 Q4, Work of the Scotland Office

57 Q29, Work of the Scotland Office

16 November 2017