The EU Withdrawal Bill has been branded “unacceptable” by the Lords’ Constitution Committee in a report today that warns of “significant constitutional repercussions” if the Scottish Parliament refuses to endorse the legislation.
The UK government bill has been branded a “formal recentralisation of power and exercise of constitutional hierarchy” in evidence taken by peers, the report reveals.
Scotland’s Brexit minister Mike Russell will address the Lords later today to set out concerns north of the Border over the UK government’s proposals.
MSPs have already said they will reject the bill without significant changes that would allay concerns of a “power grab” by Westminster, prompting concerns the UK may be plunged into an unprecedented constitutional crisis.
Many of the EU powers returning to the UK in areas such as farming and fishing belong at Holyrood, according to the Scotland Act that brought about devolution.
But the bill drawn up at Westminster proposes that these will all be transferred to Westminster at the point of Brexit, before UK ministers decide which additional responsibilities are then to be passed onto Holyrood.
Today’s Lords report warns: “The constitutional consequences of proceeding with the bill without legislative consent from the devolved legislatures would be significant and potentially damaging, both to the UK’s withdrawal from the European Union and to the union of the United Kingdom.”
The UK government has said it would bring forward changes to the bill to meet the concerns of the SNP, but failed to do so in time for the first stage of the bill.
Holyrood’s constitution committee has already recommended MSPs reject the legislation, which will come before them later this year.
It would mark the first occasion Holyrood has rejected such a legislative consent motion. Although Holyrood cannot block Brexit, the move would place the UK in uncharted constitutional territory. The bill would mark a shift in the constitutional balance of the UK away from the “three Celtic lands” of Scotland, Wales and Northern Ireland, Professor Richard Rawlings – Professor of Public Law at University College London – told peers.
He added: “At one and the same time, Westminster and Whitehall are freed up to shape a post-Brexit world in crucial aspects and the devolved institutions are locked down and required to wait for partial release.”
The committee of peers is now urging the UK government to “work closely” with the devolved administrations to secure agreement on changes to the bill, which would draw a line under concerns of a power grab.
Mr Russell will be joined by his Welsh Government counterpart, Mark Drakeford, at an event in the Lords today aimed at promoting changes to the bill.
“Along with the Welsh government, we have made clear we are unable to recommend consent to the EU Withdrawal Bill in its current form,” Mr Russell said ahead of the meeting.
“That’s because it disregards the devolution settlement by allowing the UK government to take control of clearly devolved policy areas like farming and fishing.”
The bill was drawn up to transpose EU law into British law so the same rules apply on the day of Brexit as the day before, and will see EU responsibilities in devolved areas initially transferred to Westminster.
The UK government said this would allow common frameworks to be created ahead of further devolution, but the first ministers of Scotland and Wales say the devolved administrations will effectively lose out on areas of responsibility.
The Scotland Act, which brought about the creation of the Scottish Parliament, states responsibility over key EU powers such as farming and fishing lie at Holyrood and the SNP is demanding these be transferred to Scotland immediately after Brexit.
The peers report today also says the bill is “fundamentally flawed” in multiple ways and risks “undermining legal certainty” across the UK.
In many areas, the final shape of that law will depend on the outcome of the UK’s negotiations with the EU, the committee warns.
“We conclude that the Bill risks fundamentally undermining legal certainty in a number of ways,” the peers add.
The method proposed to create a new category of “retained EU law” will cause “problematic uncertainties and ambiguities”, the peers said.
Plans to grant ministers power to amend regulations without full parliamentary scrutiny are “overly broad” and there is an “unacceptably wide” emergency procedure for short-term changes.
“The bill is therefore fundamentally flawed from a constitutional perspective in multiple ways,” the report said.
In a separate report, the Lords EU Energy and Environment Sub-committee examined the impact of the government’s plans on the energy market and warned that bills could rise and major projects could be disrupted.
But the peers said the UK was on course to be outside the EU’s internal energy market as a result of the government’s plans to leave the single market and jurisdiction of the European Court of Justice.
The peers said: “It is likely that the UK’s withdrawal from the EU will lead to less efficient energy trade, which could in turn increase the price paid by consumers for energy security.”
The committee also highlighted a warning from energy giant EDF that “without access to EU labour it will be difficult to complete construction of the new nuclear power facility at Hinkley Point in Somerset”.