Michael Russell letter to MSPs on the EU Withdrawal Bill

EUROPEAN UNION (WITHDRAWAL) BILL – UK GOVERNMENT AMENDMENT TO CLAUSE 11

The UK Government has today tabled amendments to the clauses in the EU Withdrawal Bill relating to devolution. The fact that these amendments have been tabled is recognition on the part of the UK Government that its original approach was deeply flawed.

None the less I must be clear at the outset that, whilst we welcome that recognition, the amendments tabled today have not been agreed with the Scottish and Welsh Governments and are not supported by us.

The amendments replace the previous blanket reservation of devolved areas which are subject to retained EU law, with a power for the UK Government to make regulations in the UK Parliament imposing such a restriction in any such devolved areas. In exercising this power the UK Government would only be under a duty to consult the devolved administrations and provide information to the UK Parliament on the effect of the regulations and that consultation.  There would be no need for such changes to be agreed by the Devolved Parliaments or Governments.

The amendments also signal an intended temporary nature of the constraints created by the use of the power, including requirements to report to the UK Parliament on progress in establishing frameworks and removing the restrictions created by this regulation. They include a power enabling restrictions to be removed when new legislation is enacted or it is decided no such provision is required.

However, they still fall well short of arrangements that could be recommended for legislative consent by the devolved governments.

In particular, a requirement only to consult the devolved administrations means that in practice the UK Government could ultimately make regulations notwithstanding the opposition of the devolved administrations, entirely at its discretion, with no safeguards to protect the interests of the devolved legislatures; and with none of the agreed constitutional arrangements in place that we would be entitled to expect if devolved competence is to be adjusted, even for a temporary period.

It therefore remains essential that any regulations made under this power be approved by the devolved legislatures as well as by the UK Parliament, in line with the current and long standing constitutional arrangements in the devolution settlements.

The UK Government has indicated that it intends that constraints introduced in these regulations to be temporary and has separately indicated that it hopes that consequent frameworks will be agreed, not imposed.  They also maintain that it is likely that these frameworks will be established in further primary legislation, which should trigger the need for legislative consent to be given.

However, whatever the intention, any matters covered by regulations will in effect be reserved, even if on a temporary basis. That would mean that the devolved legislatures could not be certain that the Sewel convention, through which their agreement is sought for primary legislation, would apply in the normal way to UK legislation, made in relation to those matters.  The UK Government have refused to confirm that it would.

As described below, frameworks may cover wide areas of key concern to Scotland. It is essential therefore that as well as agreeing the regulations to give effect to a temporary constraint, that changes are made to put it beyond doubt that the devolved legislatures agreement is required for any follow on primary legislation to establish frameworks.

Moreover, although the amendments signal an intention to have only temporary restrictions, this is entirely at the discretion of the UK Government.  Unlike other regulation-making powers in the Bill, there is no provision for this power to expire. Nor is there any guarantee that any restrictions would end. Under its amendments that is entirely at the discretion of the UK Government and they have refused to agree to a sunset clause.

The amendments need to be considered alongside the provisional analysis published last week by the UK Government of where devolved competence intersects with EU law.  That analysis runs to 153 different areas, divided into 3 different categories, of which the UK Government suggests 82 may require non-legislative frameworks and 24 where a legislative framework may be required.

The analysis includes areas of devolved competence of vital interest to Scotland and the Scottish economy, such as, agriculture, fishing, environmental policy, public procurement and food standards. The UK Government also claims that areas such as Geographical Food Indicators and State Aids are reserved, though both devolved administrations dispute that and the previous version of the list did not make that assertion.

All the areas covered are of vital importance for our industries and our economy and the effect of the amendments now tabled in the House of Lords will be to allow the UK Government to unilaterally take control of any or indeed all of these devolved areas – whether that be the 24 areas of vital interest to Scotland where they say they believe legislation is required, or the remaining 131 areas in its analysis.  In addition the UK Government has confirmed to the devolved administrations that it may bring forward further subjects not presently on the list as published if it deems it necessary.

The Scottish Parliament is being asked to agree these amendments with no certainty about the areas in which frameworks will be established, how these will work, how they will be governed and how we will go from temporary restrictions to longer terms solutions. That is unacceptable.

Clearly we cannot agree to such proposals.  The devolution settlement cannot be changed, even temporarily, without the consent of the Scottish Parliament.

The UK Government believes that it must have these extraordinary powers to unilaterally change the devolution settlement because it is concerned that it may prove to be difficult to agree regulations, subsequent frameworks, or because changes may have to be considered late in the day as the shape of the future deal with the EU becomes clear. This is despite the fact that the Scottish Government has consistently made clear that we are not opposed to common frameworks where these are in the best interests of Scotland and are ready to work with the UK Government to agree where these may be required.

Last Thursday the Welsh and Scottish Governments offered new proposals that would take care of the UK Governments concerns, including a commitment to not withholding agreement unreasonably and to a written agreement on these matters. The UK Government went ahead and tabled their amendments without responding to those offers, but they will remain on the table, first of all for the JMC (P) this week.

There can be no justification for the UK Government to take these powers to unilaterally impose changes to devolution, to disregard the rights of the Scottish Parliament and ride roughshod over the devolution settlement, a settlement which reflects the settled will of the Scottish people. As the First Minister has said, it is inconceivable that any First Minister would recommend that course of action to the Parliament.

The Scottish Government has consistently said that we want an agreed solution. Together with the Welsh Government we have previously tabled amendments that would both protect devolution and allow common frameworks to be put in place.  If, as it claims, the UK Government is committed to acting in the interests of the people of Scotland and to respect the devolved institutions overwhelmingly supported by them, then it should even at this late stage bring forward changes to give effect to this, or agree to those which have proposed.

We remain ready to discuss those changes, but in the meantime we will press ahead with our EU Continuity Bill, which received majority backing across the Scottish Parliament last week and the amending process for which commences on Tuesday 13^th March.

Yours sincerely,

Michael Russell MSP

Minister for UK Negotiations on Scotland’s Place in Europe