Letter from Cabinet Secretary for Constitution, External Affairs and Culture to the Convener, 20 January 2022
Dear Clare
The UK Government has indicated that it intends to lay a statutory instrument later this month to repeal section 12 of the European Union (Withdrawal) Act 2018 (EUWA). We understand the laying date for these regulations will be 25 January.
The Scottish Government believes that this statutory instrument falls outside the protocol on scrutiny by the Scottish Parliament of consent by Scottish Ministers to UK secondary legislation in devolved areas arising from EU Exit, and therefore does not require formal notification under the protocol, for reasons set out below. Nevertheless, given the regulations’ constitutional significance, it is appropriate to notify the Parliament in advance.
As you know, Clause 11 of the Bill as introduced contained a provision to place the modification of retained EU law outside the Scottish Parliament's competence, in a way which would not have been compatible with EU law immediately before withdrawal - effectively freezing devolved competence for an extended period after EU exit, with the discretion to lift any restrictions lying solely with UK Ministers. This provision would have given the UK Parliament and UK Government the unilateral power to make decisions in devolved policy areas previously affected by EU law. Schedule 3 of the Bill made parallel provision in respect of the powers of Scottish Ministers.
The Scottish Government rejected in principle the proposition that devolved competence should be constrained in this way following EU exit, arguing that policy responsibility for matters within devolved competence lies with the Scottish Government, accountable to the Scottish Parliament. This underscored a wider principle: that on EU exit, the Scottish Parliament should have been in the same position as the UK Parliament: able to act within its area of competence in the way it sees fit.
Following widespread criticism of Clause 11 (including the unanimous report of your committee’s predecessor), the UK Government brought forward amendments now contained at Section 12 of the enacted legislation. This provision gives powers to UK Ministers to unilaterally impose constraints on devolved competence, without the consent of the Scottish Parliament.
One of the fundamental principles of the devolution settlement is that the powers and responsibilities of the Scottish Parliament, and in turn, the Scottish Government, cannot be changed without its consent. This is embodied in the statutory procedures under the Scotland Act 1998 which require the agreement of the Scottish Parliament, as well the House of Commons and the House of Lords, before such changes can be made by secondary legislation. The Sewel Convention similarly provides that consent will normally be sought from the Scottish Parliament before changes can be made by primary legislation at Westminster.
While the they have never been used, the powers in section 12 of the Act for UK Ministers to change that competence, unilaterally and without consent, overrides that fundamental constitutional principle of the devolution settlement, which is why it was rejected by both the Scottish Government and the Scottish Parliament.
Despite the refusal of legislative consent by the Scottish Parliament, the UK Government proceeded with the legislation, consciously and deliberately overriding the Sewel Convention for the first time since devolution in 1999.
It is these powers which the UK Government now intends to repeal.
In the Scottish Government’s view these regulations do not fall under the terms of the protocol on scrutiny by the Scottish Parliament of consent by Scottish Ministers to UK secondary legislation in devolved areas arising from EU Exit.
This SI is made under section 12(9) of EUWA and this is not a power which is listed in Annex A of the protocol. The Protocol does foresee circumstances where the exercise of other powers may require notification. However, this would only be where those powers are exercised within devolved competence and are for a purpose which would have been within EU competence prior to the end of the transition period.
In addition, the amendments made by this statutory instrument will not be within devolved competence at the time that it is to be made. During the passage of the Withdrawal Act, clause 11 (as the original version of section 12 was then numbered) was considered and the Legislative Consent Memorandum setting out the Scottish Government position was consistent with the view that clause 11 was within competence of the Scottish Parliament. However, this provision of EUWA became a “protected enactment” under schedule 4 of the Scotland Act when it came into force and so it seems to be clear that the s12(9) power cannot be said to be within competence for the purpose of applying the protocol. This applies to the other enactments which this SI modifies as well as the amendments to the Scotland Act itself.
Despite this, and for the reasons set out in this letter regarding the significance of the section 12 provisions, I believe it is appropriate to notify the Parliament ahead of regulations being laid.
I am copying this letter to Stuart McMillan, Convener, Delegated Powers and Law Reform Committee.
Best wishes,
Angus Robertson