Scottish Tories call on Theresa May’s Government to change Brexit Bill

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The Scottish Conservatives today call on the UK government to alter the Brexit Bill to avoid a constitutional crisis and to counter SNP claims of a power grab.

Writing in The Scotsman, the leading Scottish Tory Adam Tomkins warns the legislation must be delivered in a way that “respects” devolution and will have to be “amended” to satisfy the Scottish and Welsh governments.

The Scottish Conservatives today call on the UK government to alter the Brexit Bill. Picture: TSPL

The Scottish Conservatives today call on the UK government to alter the Brexit Bill. Picture: TSPL

Adam Tomkins: How to avoid a Brexit ‘power grab’ crisis

With the UK and Scottish Governments embroiled in a long-running row over how powers coming back from the EU are distributed, Professor Tomkins calls for “movement on both sides to find a solution”.

The Scottish Government has warned that the EU Withdrawal Bill would not receive Holyrood support as it stands, because it would see EU powers passed to Whitehall before they are considered for devolution.

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Adam Tomkins, who teaches constitutional law at the University of Glasgow

Adam Tomkins, who teaches constitutional law at the University of Glasgow

Failure of the Scottish Parliament to back the bill by passing a so-called Legislative Consent Motion (LCM) would trigger a crisis and prompt claims of Westminster ignoring the will of Holyrood. In his article, Prof Tomkins, the Scottish Conservatives’ constitution spokesman, suggests the legislation must recognise more powers coming to Scotland as well as recognising the need for clear UK frameworks in some aspects of law.

Mr Tomkins’ article is published as UK Brexit minister Robin Walker heads north to Holyrood to give evidence to MSPs on the finance committee during a session on legislative consent for the EU Withdrawal Bill. Mr Walker will be accompanied by Scottish Secretary David Mundell. Their UK government colleague , Cabinet Office minister Chris Skidmore, will appear before Holyrood’s delegated powers and law reform committee.

Prof Tomkins’s intervention can be seen as an attempt by Ruth Davidson’s Scottish Conservatives to position themselves as “honest brokers” in the efforts to break the impasse between the two administrations.

Nicola Sturgeon has published a list of 111 powers, including agricultural responsibilities, rail franchises and fracking licences, that she believes are threatened by a Westminster power grab.

The 111 powers are those currently exercised at EU level, but which touch on Holyrood’s devolved areas.

Prof Tomkins writes: “Under the bill as introduced, all 111 [powers] would be held in Whitehall, at least to start with, with UK ministers releasing them to the devolved administrations over time. To the SNP that is a ‘power grab’.

“They want all 111 to be repatriated directly to Holyrood. We need to see movement on both sides to find a solution. Brexit must be delivered in a way that respects devolution. Yet, at the same time, it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved administrations in Edinburgh or Cardiff to be able to use powers formerly held at the EU level to pull apart Britain’s three-centuries-old internal market.”

Professor Tomkins argues that the Scottish and Welsh governments have accepted the importance of maintaining the UK internal market and adds that all parties accept the need for common UK frameworks in law.

He says the UK government agrees that common frameworks cannot be imposed by the UK government and must have the agreement of devolved administrations.

“This, surely, is the basis on which consent for the Withdrawal Bill can be given by the devolved administration,” Professor Tomkins says. “What we now need is rapid progress on the negotiations over frameworks, That is what matters to businesses on the ground in Scotland, that is what will have a real-life impact on people here. Looking at the substance of the 111 powers, many can safely be devolved without further ado; why aviation noise, for example, would need to come under a UK-wide framework I do not know. But there are some – a small number in important policy areas – where some sort of common framework will be needed. 

“There is a lot of work to do to hammer out the detail, but there has been good progress in recent weeks, including a consensus about the principles upon which we can all agree.

“But this now needs to be accelerated: that is the key to unlocking agreement on the EU Withdrawal Bill.

“The EU Withdrawal Bill has a long way to go before it is enacted, and it will need to be amended in order to obtain Scottish and Welsh consent. All of this is straightforwardly achievable, and the Scottish Conservatives in both the Scottish Parliament and the House of Commons will continue to do everything we can to make that happen.”

Last night Mr Mundell said: “The EU (Withdrawal) Bill is a key piece of legislation to ensure that the UK has a functioning statute book at the point we leave the EU.  Ensuring stability, certainty and a smooth transition is vital for people and business right across the UK.

“Myself, Robin Walker and Chris Skidmore will give evidence today at two Scottish Parliament Committees.  

“This is part of extensive and ongoing engagement with the Scottish Government and Scottish Parliament on Brexit.

“Those discussions include looking at where new powers will come to Holyrood and where we will need common frameworks, to ensure there is certainty and no new barriers to trade for Scottish businesses and consumers.

“People in Scotland, rightly, expect their two governments to work together and we want to work collaboratively with the Scottish Government and MSPs on Brexit.”

A UK Government spokesperson said: “The Withdrawal Bill is designed to ensure that the UK exits the EU with certainty, continuity and control. The UK Government has been clear that it stands ready to listen to those who offer improvements to the Bill – but we will do nothing that risks undermining the benefits of the UK, such as its internal market.

“The Scottish and Welsh Governments both agree that UK frameworks will be required in some areas, and we have already started discussions on what these areas will be, agreeing a set of principles at the recent Joint Ministerial Council for how the frameworks will operate.

“We have always said we expect that the return of powers from the EU will lead to a significant increase in the decision making powers for the devolved administrations.”