Kenny Rose: Using secondary legislation may be seen as a threat to reserved powers

UK ministers have insisted Brexit needs to be negotiated under a UK-wide framework

The Bill has been structured to effectively block the direct transfer of any powers from the EU to the Scottish Parliament so that these transfer to the UK government which will then decide what is appropriate to be devolved.

UK ministers have insisted Brexit needs to be negotiated under a UK-wide framework after which greater powers than those currently in place will be transferred back to Holyrood as well as the Welsh and Northern Ireland Assemblies. There has, however, been no clarity on this, creating concerns that Westminster could play a more influential role in areas that are currently devolved.

As things stand, the Scottish Government is unlikely to submit the Bill for Holyrood’s consent under the Sewel Convention until the amendments they’ve put forward with their Welsh counterparts are addressed. But does it matter whether or not there is consent from the Scottish Parliament or any of the other UK devolved bodies?

The Sewel Convention was established during passage of the Scotland Act 1998 which led to the creation of the Scottish Parliament. At that time he said the UK government “would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”.

Fast-forward to 2017 with the UK now opting to leave the EU and the position on the application of the Sewel Convention seems rather ambiguous.

The Withdrawal Bill makes it clear that the UK government accepts the convention applies and a form of consent is required from the Scottish Parliament. The key reason for this is the intended removal of Holyrood’s requirement under the Scotland Act to comply with EU law, a principle established when the Scottish Parliament was created.

The Withdrawal Bill states the Scottish Parliament would comply with “retained EU” law which would be re-enacted into UK law from the day Britain formally exits the European Union. The Bill provides that secondary legislation would be used under so-called “Henry VIII” powers to effect the detailed transcription of EU law into UK law and for the transfer of powers to devolved bodies.

While the Sewel Convention suggests legislative consent would be needed when Westminster legislation touches on devolved matters, this would not apply if done through secondary legislation.

In the judgment in the case of Miller v Secretary of State for Exiting the European Union, where the Scottish Government was allowed to intervene in the appeal by the UK government, the judges expressed the view that the Sewel Convention remained a political and constitutional measure as opposed to one that had the force of law.

This suggests there would be no scope for legal challenge to the UK government proceeding with Brexit and implementing the Withdrawal Bill without consent under the Sewel Convention. Given the exceptional circumstances of Brexit, it may feel it is justified in doing so.

This could, however, be a risky strategy which raises further political and constitutional issues, including the prospect of another independence referendum, especially if the UK government is perceived to be undermining the principles of devolution.

It is far from clear at this stage whether the UK government is open to some form of compromise and if so what that compromise might look like. What does appear certain is that the Scottish Government and other devolved bodies will continue to push for more full-on engagement and for additional powers in areas such as immigration as the Brexit process continues.

Kenny Rose is a partner at CMS