Brexit Bill should be rejected without settlement, MSPs report

A trial of strength between the Scottish and UK Governments over the latter's EU Withdrawal Bill looks increasingly likely after a Holyrood committee published a report recommending that the Parliament withholds its consent without a political settlement over the devolution-related provisions.

By a majority, the Finance & Constitution Committee concludes that the disagreement over clause 11 of and sched 3 to the bill can be resolved through “mutual trust and respect” between the Governments, and recommends reciprocal political commitments as a means of ensuring parity between them. This would mean that clause 11, by which powers currently exercised by the EU in otherwise devolved areas would return in the first place to London rather than Edinburgh, would not be required. Otherwise, without another agreed solution, it recommends that the Scottish Parliament does not consent to clause 11.

SNP, Labour and Green members of the committee backed the recommendation, but the three Conservative members dissented.

It comes as the UK Government made it clear that it would not make further concessions after reducing from 111 to 24 the number of areas affected by the clause. It has already reached agreement with the Welsh Government to resolve similar concerns.

Refusal of legislative consent would not prevent the enactment of the UK bill, but would lead to a legal test of the competency of the alternative measure passed by Holyrood. A hearing has been scheduled in the UK Supreme Court for 24 and 25 July on the UK Government's challenge to the bill as beyond devolved powers.

Bruce Crawford MSP, Convener of the Finance and Constitution Committee said: "There is scope for a reasonable solution to be found. If there is parity and both governments are treated equally, and both are bound by political agreement, then this can be amicably resolved.

"The Secretary of State for Scotland said he trusted the Scottish Government, and I welcome that, but it is time for his trust to be put into practice.

"And for that reason, our committee has reached the conclusion that clause 11 and schedule 3 of the EU (Withdrawal) Bill should be removed and for reciprocal political commitments to be included in the Inter-Governmental Agreement.”

He added: "The committee remains deeply concerned about the lack of any statutory provision within the Bill for UK Ministers to seek the consent of Scottish Ministers or the Scottish Parliament to legislate in devolved areas, especially given that the Sewel convention does not apply to subordinate legislation.

"The committee considers, as we stated in our interim report, that this cuts across the devolution settlement."

David Mundell, the Secretary of State, denied that there was a threat to devolution, pointing to the newly devolved income tax and welfare powers. He commented: "We are not able to move to a position where clause 11 was simply deleted and we've been very clear on that from the outset – nor could we accept what we would see as a change to the devolution settlement that would give the Scottish Parliament a veto over UK-wide measures."

The chamber debate on the legislative consent motion takes place on Tuesday 15 May.

Click here to view the committee's report.

• In a separate report, Holyrood's Delegated Powers & Law Reform Committee states that irrespective of which bill or combination of bills is ultimately pursued, there are a number of fundamental principles that should be "at the centre of the approach to the delivery of the package of secondary legislation required for the purposes of" Brexit, and there must be coordination and cooperation between the Governments for this process to work. The principles are that while broad powers are necessary to deliver this programme of secondary legislation, they must still be tightly defined, with both Scottish and UK ministers only having the capacity to do what is necessary for the purpose; and instruments or proposals for instruments should be laid in a way that allows for effective parliamentary consideration with input from stakeholders.