The Scottish Government has warned the UK Government not to re-reserve powers that will soon be repatriated from Brussels. The UK Government has confirmed that no decision-making power of the Scottish Government will be taken away from it. Yet still there is an apparent lack of clarity about Brexit, devolution and powers to be bestowed on Ministers.
Rumours of a “power grab” abound. This refers to the UK Government potentially holding onto power which many argue fall in the scope of the Scottish and UK Parliaments. As ever, the devil is in the detail.
Scottish Ministers have repeatedly asked about the devolution of various powers post-Brexit but have received little more than “no decisions currently made by the Scottish Government will be removed”. Legislation over agriculture and fisheries currently lies with the Scottish Parliament, but European law takes precedence. However, the UK Government has repeatedly hinted at needing to ensure there is coherent policy across the UK in both sectors – suggesting perhaps that there will be a limit to how far legislation in Scotland, England and Wales can diverge. Secretary of State for Exiting the EU, David Davis, spoke about creating a “common framework” before the election. Perhaps this is more of the same rhetoric seen in the income tax debate, where the Conservatives expressed concern about the confusion caused by having too many differences.
David Davis has since confirmed that the Repeal Bill will require a Legislative Consent Memorandum to be passed at the devolved parliaments as some of it will relate to devolved areas. But this only applies to primary legislation. Secondary legislation remains immune to the Sewel Convention, which has raised some concern that sweeping changes could theoretically be made to devolved policy by simply not putting elements on the face of each bill.
Relatedly, several bodies have expressed concern about the use of subordinate legislation to avoid scrutiny by MPs across the UK. “There is a risk this could undermine the legitimate role of Parliament in scrutinising legislation”, the Institute for Government warns. Similarly, last session’s House of Lords Constitution Committee also warned against making use of delegated powers to avoid scrutiny.
Clearly, these are serious concerns – the Repeal Bill will likely involve huge swathes of delegated powers in order to speed up the process of its passage ahead of the March 2019 deadline. In addition to the main bill, seven others were announced in the Queen’s Speech under the heading “delivering Brexit”, all of which will also likely come with some hefty subordinate legislation.
No doubt some parliamentarians will attempt to amend this law before the UK adopts it in full, but the Institute for Government has urged that no non-essential changes be made in this first step. With such a lot of legislation to bring into domestic law to mitigate the impact of leaving the EU, there is little time to make far-reaching alterations.
In recognition of this, but also reflecting the concerns of many Brexiteers, it has been suggested that the various bills include sunset clauses. This would mean setting a date for the Bill to cease to be in force, effectively putting a timer on all European law as the UK Government would then have to create its own domestic law to replace it – and presumably include any changes it would want to make. However, as the HoL Constitution Committee highlighted, “it is hard to see how a hard and fast deadline could be applied”.
The idea that the UK Government will be legislating in devolved areas (though admittedly seeking consent from devolved administrations to do so) has put many on red alert for this 'great power grab'. The General Election returning a minority government may soothe some concerns, but the potential reliance on secondary legislation throws up some very interesting constitutional questions.
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