The Scottish Parliament has refused, by 93 votes to 30, to give its consent to the UK Government’s EU Withdrawal Bill.

In a vote held on 15th May, Members of the Scottish Parliament from all parties were asked to give “legislative consent” to the Bill, which originated in the UK Parliament. This is the first time in the 19 year history of the Scottish Parliament as it is presently constituted that it has refused to give consent to a piece of UK legislation.

Sewel Motion

Legislative Consent Motions, also known as “Sewel Motions”, are a constitutional convention under which the UK Parliament legislates on a matter devolved to the Scottish Parliament, but not without its consent. Until now, there have been technical legal arguments as to whether or not such legislative consent could be refused by the Scottish Parliament, and indeed whether the UK Parliament would be bound to observe it if it were. Section 2 of the Scotland Act 2016 effectively enshrines the Legislative Consent Motion in law, stating that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

In its 2015 report on what was still at that point the Scotland “Bill”, the House of Lords Select Committee on the Constitution warned that by placing convention in statute, the UK Government risked introducing a perception that the validity of laws passed by the UK Parliament would be justiciable if they contravened, or were arguably contravening, the Legislative Consent Motion as set out in statute. The report’s authors state that whilst the word “normally” makes it clear that the UK Parliament still has power to legislate for Scotland, there is now a clear risk that the courts might be drawn into an area which has “previously been within the jurisdiction of the UK Parliament alone, namely its competence to make law”.

The EU Withdrawal Bill

We also discuss the content of the EU Withdrawal Bill elsewhere on our Brexit Hub.

The source of the disagreement between the UK Government and the Scottish Parliament revolves around Clause 11 and Schedule 3 of the Bill.

Clause 11 provides that the power to amend what is known as “retained EU law” in areas which are already devolved under UK devolution legislation to the Parliaments in Edinburgh, Cardiff and Belfast would transfer from the European Union to the UK Parliament, rather than to those devolved Parliaments.

The Scottish Government argues that Clause 11, as it is currently drafted, amounts to a “power grab” by the UK Government and that all powers current devolved in theory to devolved Parliaments but bound in practice by EU law (which takes precedence) should now, post-Brexit, be devolved in full. The UK Government argues that in order to create new UK-wide frameworks to replace EU legislation, the UK Parliament requires to have power over those areas.

In its May 2018 Report, the Scottish Parliament’s Finance and Constitution Committee recommended reciprocal political commitments as a means of ensuring parity between the UK and Scottish Governments, meaning that Clause 11 of the Bill would not be required to enable the future agreement of UK wide common frameworks. That recommendation was not taken up.

What next?

The Secretary of State for Scotland has indicated that the UK Government would be prepared to pass the EU Withdrawal Bill in the UK Parliament regardless of the Scottish Parliament’s decision not to give legislative consent to the Bill. However, he added that the UK Government is prepared to continue to work with the devolved Parliament in Scotland in order to reach an agreement.

It remains to be seen whether the two sides can reach a mutually acceptable agreement. In the meantime, the Scottish Parliament’s Presiding Officer has confirmed that he intends to write to UK Government Ministers and representatives of the other devolved UK administrations to notify them that the Scottish Parliament has refused to provide the Bill with legislative consent.