CALL FOR EVIDENCE ON THE DELEGATED POWERS CONFERRED ON THE SCOTTISH MINISTERS IN THE EUROPEAN UNION (WITHDRAWAL) BILL
The UK Government introduced the European Union (Withdrawal) Bill (“the Bill”) on 13 July 2017. The Explanatory Notes to the Bill state that the Bill performs four main functions. It:
- repeals the European Communities Act 1972;
- converts EU law as it stands at the moment of exit in to domestic law before the UK leaves the EU;
- creates power to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement; and
- maintains the current scope of devolved decision-making powers in areas currently governed by EU law.
The UK Government has indicated that it will seek legislative consent for the Bill under the Sewel Convention. It is expected that a Legislative Consent Memorandum (LCM) will be lodged by the Scottish Government shortly.
It is expected that the Finance and Constitution Committee will be the lead committee for consideration of the LCM. However, as the Bill confers new powers on the Scottish Ministers the remit of the Delegated Powers and Law Reform Committee will also be engaged.
The Delegated Powers and Law Reform Committee’s role is to consider the delegated powers in the Bill conferred on the Scottish Ministers. Specifically, it is for the Committee to consider whether:
- it is appropriate to confer these powers on the Scottish Ministers;
- the powers are appropriately framed;
- the powers match the policy intention as expressed in the Delegated Powers Memorandum and, if appropriate, the LCM; and
- the powers are subject to an appropriate level of parliamentary scrutiny.
In order to inform its consideration of the delegated powers conferred on Scottish Ministers in the Bill the Committee is seeking your views on those powers. In particular, the Committee would welcome your views on the following questions:
- The Bill confers powers on the Scottish Ministers to “prevent, remedy or mitigate” any failures in retained EU law after the UK leaves the EU. The Bill also confers powers to prevent or remedy any breach in international obligations following withdrawal from the EU, to implement any withdrawal agreement before the date of withdrawal, and a power to provide for fees or charges in connection with certain functions which a public authority has by virtue of some provisions of the Bill. Are the powers conferred on the Scottish Ministers to modify existing primary and secondary legislation in the context of the UK’s withdrawal from the EU appropriate?
- The powers conferred on the Scottish Ministers are subject to restrictions. For example, the powers cannot be used in a way that would be inconsistent with retained EU legislation or Treaty rights as defined in the Bill. The powers can only be used to adjust existing domestic law and only so far as this would be within the Parliament’s legislative competence or Ministers’ wider executive competence; and in some circumstances can only be exercised with the prior consent of UK Ministers. Do these restrictions seem appropriate or do they present any problems in terms of the workability of the legislation?
- Is the Bill sufficiently clear as to circumstances in which these powers conferred on Scottish Ministers can be exercised?
- Do the powers match with the policy intention as expressed in the UK Government’s Delegated Powers Memorandum?
- The scrutiny procedures which apply to subordinate legislation made by the Scottish Ministers depend upon how the powers are used. The affirmative procedure must apply if the power is used to establish a public authority, transfer an EU function to a newly created public authority, transfer an EU legislative function to a Scottish body, relates to fees, creates or widens the scope of a criminal offence, or creates or amends a power to legislate. In other cases either the affirmative or negative procedure may be used.Do the scrutiny procedures for instruments made by the Scottish Ministers allow the Scottish Parliament adequate opportunity for scrutiny?
- The Bill confers powers on the UK Ministers to make subordinate legislation to deal with withdrawal from the EU. The UK Ministers are permitted to use the “made affirmative” procedure if the Minister “is of the opinion that, by reason of urgency, it is necessary”. The instrument may be made and brought into force immediately but it will lapse after 28 days if the UK Parliament does not approve it within that period. The Bill contains no similar procedure to deal with urgency in relation to powers conferred on the Scottish Ministers. Should the Scottish Ministers also have such a power?
- The Bill confers powers on the UK Ministers to legislate in areas relating to withdrawal from the EU which may include legislating in devolved areas. There is currently no role for the Scottish Parliament to scrutinise such legislation. Should there be a role for the Scottish Parliament to do so, and if so, what should that role be?
- The Bill enables certain powers to be exercised in one of 3 different ways, either by UK Ministers, the Scottish Ministers or by both acting jointly. There is no formal role for the Scottish Parliament to scrutinise the choice UK or Scottish Ministers make regarding the exercise of the powers. Should there be a role for the Scottish Parliament to do so, and if so, what should that role be?
How to submit your evidence
The closing date for responses is Friday 6 October 2017.
All responses should be sent electronically (in Word format – no confirmatory hard copy required) to DPLR.Committee@parliament.scot.
Written responses will be handled in accordance with the Parliament’s policy for handling written evidence received in response to calls for evidence. All written evidence received may be published by the Parliament and will be treated as a public document. If you wish to submit evidence in confidence or anonymously please read the policy at the link above.
What happens next?
The Committee will take oral evidence on the Bill throughout September and October. The Committee will consider what further oral evidence it will take based on the written evidence it has received.
Should you require alternative formats of this information or further assistance in making a written submission to the Committee, please do not hesitate to contact the clerking team of the Committee via the email address above or by telephone on 0131 348 5212.