The European Union (Withdrawal) Bill published this morning confirms that no new powers will automatically be passed from the EU to Scotland after Brexit.
Scottish ministers will not be able to amend European Union regulations over devolved areas such as agriculture and fisheries after Brexit, with powers instead being ring-fenced in UK law until the Scottish and UK Governments agree on which ones can be safely devolved without creating trade barriers at the border with England.
Scottish Secretary David Mundell said the arrangement was “transitional” and that the bill was “not a power grab but a power bonanza for the Scottish Parliament”.
Mr Mundell said he hoped a “range of powers and responsibilities” could be devolved “immediately” after Brexit.
However, in a joint statement, Nicola Sturgeon and Carwyn Jones called the bill an “attack on the founding principles of devolution” and threatened to vote against a consent motion which is expected to go before the Scottish Parliament and Welsh Assembly early next year.
Devolved parliaments cannot block its progress, but failure to get the consent of all parts of the UK could fuel a constitutional crisis.
“Today’s publication of The European Union (Withdrawal) Bill is the first test as to whether the UK Government is serious about such an approach. It is a test it has failed utterly,” the two leaders said in a joint statement.
“We have repeatedly tried to engage with the UK Government on these matters, and have put forward constructive proposals about how we can deliver an outcome which will protect the interests of all the nations in the UK, safeguard our economies and respect devolution.
“Regrettably, the Bill does not do this. Instead, it is a naked power-grab, an attack on the founding principles of devolution and could destabilise our economies.”
Ms Sturgeon and Mr Jones said they “agree we need a functioning set of laws across the UK after withdrawal from the EU” but said new devolved powers had to be agreed “through negotiation and agreement, not imposition”.
Ministers will also get sweeping new powers to amend the law without consulting parliament after Brexit under the bill.
Wide-ranging powers to correct “deficiencies” in EU regulations transferred into British law will last for two years after Brexit day.
Ministers will be able to amend UK laws and even create new agencies and regulators to implement them if necessary.
Critics have warned about the possible extent of so-called ‘Henry VIII’ powers as the UK leaves the EU.
However, ministers will have their powers time-limited under a two-year ‘sunset clause’ in the bill, and will only be able to make changes where technical problems arise because of the transfer of EU regulations - not because they don’t like them.
It is understood only a handful of new quangos will be needed, with most responsibilities being passed to existing agencies, such as the UK Civil Aviation Agency taking on enforcement of European air safety rules.
The SNP accused the UK Government of being “in hiding” after the bill was introduced at Westminster without debate.
Peter Grant MP, the SNP’s Europe spokesperson, said: “Since the EU referendum over a year ago and the recent general election it has become clear that this a Tory government that operates on glib and grubby deals.
“The UK government’s refusal for a statement or debate on the Bill yet again shows a Tory government in hiding at the first sign of parliamentary scrutiny.”
Under the terms of the legislation, EU law will cease to have supremacy in the UK on Brexit day.
However, all European case law prior to the UK leaving the EU will continue to apply and judges at the UK Supreme Court and the Scottish and English High Courts will only be able to move away from existing interpretation of that case law in limited circumstances.