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European Union (Withdrawal) Bill LCM – Interim Report

An Interim Report by the Finance and Constitution Committee on the UK Government’s European Union (Withdrawal) Bill.

Source: European Union (Withdrawal) Bill LCM – Interim Report

  1. The European Union (Withdrawal) Bill [hereafter the Bill] was introduced in the House of Commons by the UK Government on 13 July 2017. The UK Government recognises that the Bill engages devolved competences in a range of areas and is therefore seeking the Scottish Parliament’s legislative consent for the Bill. The Scottish Government published its Legislative Consent Memorandum (LCM) on 12 September 2017. The Finance and Constitution Committee [hereafter the Committee] has been designated as the lead Committee scrutinising the Bill with regard to legislative consent. The Delegated Powers and Law Reform (DPLR) Committee has also reported to the Committee on the LCM.

  1. The Bill seeks to provide a framework for the treatment of EU law within the UK upon the exit of the UK from the European Union. In order to achieve this aim, the Bill seeks to perform four main functions. The Explanatory Notes to the Bill describe these four functions as follows1

    • Repeal the European Communities Act 1972;

    • Convert EU law as it stands at the moment of exit into domestic law before the UK leaves the EU;

    • Create powers to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement, and

    • Maintain the current scope of devolved decision making powers in areas currently governed by EU law.

  1. The Bill is detailed and highly complex but in summary it—

    • Provides for changes to the law and to the legal systems of the UK on, or by reference to, “exit day”;

    • Creates a new body of law called “retained EU law” (discussed below). That body of law will include existing UK (including Scottish) legislation that gives effect to EU law, existing EU legislation that ‘automatically’ applies to and within the UK, and certain other legal rights, liabilities and obligations that are recognised and given effect by the UK courts as a result of the UK’s membership of the EU;

    • Gives guidance to the courts as to how they should interpret “retained EU law”;

    • Confers a range of powers on ministers (at UK Government level and in some cases at devolved administration level) to make changes to UK law in order to ensure that retained EU law operates effectively after the UK leaves the EU, to ensure that the UK continues to meet its international obligations and to implement the UK’s withdrawal agreement with the EU; and

    • Alters the legislative competence of the Scottish Parliament (and that of the National Assembly for Wales and the Northern Ireland Assembly) and the executive competence of the Scottish Government (and the other devolved governments) by imposing new restrictions in relation to retained EU law.

  1. In most circumstances, following a lead committee’s report on an LCM, the Scottish Government would lodge a Legislative Consent Motion seeking the Parliament’s consent to the UK Parliament legislating on devolved matters. The Scottish Government has indicated that it does not intend to lodge such a motion because it cannot recommend that the Parliament give its consent to the Bill as it stands. They state in their LCM that their objections to the approach taken in the Bill, and the impact the Bill would have on the future governance of the UK post withdrawal from the EU are “so fundamental” that they “cannot recommend that the Scottish Parliament gives consent, even conditionally, to the Bill in its current form”.2

  1. However, the Scottish Government has intimated that, depending on whether and how the Bill is amended and the outcome of other negotiations with the UK Government, it may lodge a supplementary LCM on the Bill in due course. That supplementary LCM may potentially include a draft legislative consent motion.

  1. The Bill has completed the Committee Stage in the House of Commons. All amendments promoted by the Scottish Government and the Welsh Governments were unsuccessful at this Stage. While some amendments were agreed at Committee Stage which may be relevant to our consideration of the LCM the Committee has not yet had the opportunity to consider these. No amendments were agreed to Clause 11. The Committee notes, however, that the Secretary of State for Scotland has indicated that the UK Government intends to table amendments to Clause 11 at Report Stage in the House of Commons.3 This interim report details the Committee’s view on the Bill as introduced.

  1. The Committee issued a call for written evidence and has taken a wide range of oral evidence on the Bill.4 The Committee would like to thank all those who have provided evidence and also the Committee’s advisers on the Bill, Christine O’Neill and Professor Nicola McEwen. The Committee will produce a final report on the LCM prior to the final amending stage in the House of Lords.

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