MSP committee unable to recommend Holyrood backing for Brexit legislation
9 January 2018, 13:39 | Updated: 9 January 2018, 13:40
A cross-party committee of MSPs has said it cannot recommend the Scottish Parliament gives its consent to crucial Brexit legislation as it currently stands.
MSPs on Holyrood's Finance and Constitution Committee have unanimously agreed that clause 11 of the European Union (Withdrawal) Bill "represents a fundamental shift in the structure of devolution" and could damage "the integrity of the devolution settlement in Scotland".
In a highly unusual move, the committee, which includes three Conservative MSPs, made clear it cannot recommend the Scottish Parliament gives formal consent to the Bill as it currently stands - calling for the controversial clause to either be replaced or removed.
Committee convener Bruce Crawford stated: "The committee is unanimous in its view that it is not in a position to recommend legislative consent to the EU Withdrawal Bill.
"The whole committee is of the view that clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland."
The Scottish and Welsh governments have already made plain they cannot consent to the legislation as it is currently drafted.
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 will allow common frameworks to be created ahead of further devolution - but the first ministers of Scotland and Wales have branded it a Westminster "power grab".
In an interim report on the Bill, MSPs said they agreed with the "vast majority of the expert evidence it has received that clause 11 represents a fundamental shift in the structure of devolution in Scotland".
They added: "Regardless of whether the Scottish Parliament obtains additional powers or not, the effect of clause 11 will be to adversely impact upon the intelligibility and integrity of the devolution settlement in Scotland."
The legislation does not contain any provisions guaranteeing that clause 11 will be a temporary measure, MSPs noted.
Their report stated: "The committee is of the view that clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland.
"The committee considers further that even if clause 11 is designed to be a transitional measure it fails to fully respect the devolution settlement.
"The committee therefore will not be in a position to recommend legislative consent for the Bill unless clause 11 is replaced or removed."
In December, Scottish Secretary David Mundell told MPs that clause 11 would be amended - making the pledge after SNP, Labour, and Scottish Tory MPs all voiced concerns about its impact on devolution and the Union.
The Finance and Constitution Committee has said it will produce a final report on whether the Bill should get legislative consent after these changes are made.
Mr Crawford was clear the issues with clause 11 must be resolved, regardless of whether the Scottish and UK governments can reach a deal on the use of common frameworks.
The committee convener said: "We welcome the commitment from the UK Government that common frameworks will not be imposed.
"Our committee strongly believes that both the process for agreeing common frameworks and the actual content must be arrived at through agreement, not imposition."
Deputy convener Adam Tomkins, one of the Conservatives on the committee, said: "All of the committee welcomes the progress that has been made between the UK Government and the devolved governments in developing an approach to agreeing common UK frameworks, and notes that this work is on-going.
"In particular, members welcome the UK Government's commitment to respect the devolution settlement."
Scottish Brexit minister Mike Russell said: "I welcome the committee's report and its conclusion that it cannot recommend the Scottish Parliament give consent to the EU (Withdrawal) Bill as drafted.
"In particular, I welcome the committee's unanimous conclusions that the approach of the Bill is incompatible with the devolution settlement in Scotland and not necessary to enable the agreement of common frameworks after withdrawal.
"We have been clear that all returning powers that relate to devolved areas must stay devolved after Brexit.
"Unless the UK Government makes significant changes, then in order to protect the Scottish Parliament, we will have no choice but to pursue the option of our own legislation - a Continuity Bill for Scotland."
A UK Government spokeswoman said: "We want the whole of the UK to come together in support of this legislation, which is crucial to delivering the outcome of the referendum.
"Every part of the United Kingdom needs a functioning statute book, and that applies as much to Scotland as elsewhere.
"As the committee has acknowledged, we have made good progress in our discussions with the Scottish Government on common frameworks and we look forward to making significant further progress over the coming months."