Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?

 

mcewen

Different political actors have responded to the decision by the Scottish Parliament to withhold its consent for the UK government’s showpiece EU (Withdrawal) Bill in very different ways. Professor Nicola McEwen discusses the options open to both the Scottish and UK governments. 

After much deliberation, the Scottish Parliament voted by 93-30 to withhold consent for the EU (Withdrawal) Bill, the main piece of UK legislation paving the way for Brexit. Labour, the Liberal Democrats and the Greens accepted the SNP government’s charge that the Bill undermines the devolution settlement and the principles on which it was founded. On the same day, the National Assembly for Wales voted by 46-9 to grant consent for the Bill, with the Welsh government arguing that the amended clause 15 (formerly clause 11) and the agreement they reached with the UK government ‘defended and entrenched’ devolution. Only Plaid Cymru disagreed.

Consent was sought from both legislatures following the convention (usually referred to as the Sewel convention) that the UK parliament will not normally legislate in devolved areas, or alter devolved powers, without their agreement. The Withdrawal Bill alters the devolution settlements by placing a new constraint on devolved legislatures and ministers to avoid acting incompatibly with ‘retained EU law’, even in policy fields which otherwise fall within their remit. In its original form, this constraint was placed upon all retained EU law, with provision to release the constraint once it was agreed that there was no need to preserve a common UK legislative or regulatory framework. In its amended form, the Bill requires the UK government to specify in regulations the areas to which the restriction will apply. It introduced a time limit – UK ministers have two years from Brexit day to bring forward new regulations, and these would last for no more than five years. The amendment also places a duty on UK ministers to await a ‘consent decision’ before tabling the regulations, but herein lies the controversy. Whereas the Sewel convention assumes that consent means agreement, Clause 15 empowers UK ministers to proceed even if the ‘consent decision’ is to withhold consent. Continue reading

Voting for Brexit: the practical and constitutional barriers to getting consent for the withdrawal agreement before exit day

MIKEMASSARO.9198.CROPPED..hannah.114x133_0_MIK4282.cropped.114x133The government has repeatedly given assurances that parliament will be offered ‘a meaningful vote’ on the final Brexit deal, which is still being negotiated. In this post, Hannah White and Raphael Hogarth discuss the challenges of meeting that commitment and argues that the binary choice of ‘deal’ or ‘no deal’ is a false one. They also discuss some of the practical and constitutional issues raised by the government’s legislative plans to implement Brexit within a very short timeframe.

By October ministers hope to have negotiated a withdrawal agreement on the terms of the UK’s departure from the European Union, and a ‘framework for a future relationship’ on long-term UK-EU relations. To reach agreement with the EU on these documents in so little time will be a monumental challenge for the government – but when this challenge is complete, a new one begins. The government will then have to shepherd these documents through a number of processes in parliament.

Our new report, Voting on Brexit, sets out what the government has to do in order to get its deal through parliament, and give effect to that deal in domestic law. Below are seven key messages from that research.

1. The government’s timetable for getting its deal through parliament is ambitious

The government has promised to seek parliament’s approval for both the withdrawal agreement and the future framework in one go. However, there will be very little time in which to do so. The UK is currently set to leave the EU on 29 March 2019. That means that there will be only six months available for scrutiny and approval of the deal.

This should be enough time, providing nothing goes wrong. But if negotiations drag on past October, or parliament raises significant objections to the deal that require a renegotiation or referendum, or if the European Parliament raises its own objections, then the timetable could be unachievable. The government would need to consider seeking an extension of the Article 50 period in order to complete its negotiation and allow time for scrutiny and approval. Continue reading

Amendments are needed to strengthen the Withdrawal Bill’s provisions for scrutiny of Statutory Instruments

5GMFtvPS_reasonably_smallToday saw the start of two days of report stage debate in the House of Commons on the content of the EU (Withdrawal) Bill. At committee stage, amendments were made that created a new sifting committee for statutory instruments related to Brexit. Joel Blackwell, of The Hansard Society, argues below that the current proposals are insufficient to guarantee proper scrutiny and makes several recommendations for changes that can be made before the bill passes to the House of Lords.

The EU (Withdrawal) Bill, which returned to the House of Commons for its report stage today, was successfully amended at committee stage in December 2017 to create a mechanism which will allow MPs, via a new European Statutory Instruments sifting committee, to consider statutory instruments (SIs) made under the Bill’s widest delegated powers and recommend an upgrade in the level of scrutiny of those about which they have most concern.

This new scrutiny mechanism, incorporated through a series of amendments tabled by Procedure Committee Chair Charles Walker, is intended to constrain the wide Henry VIII powers the government will use to make changes to retained EU law via SIs (under clauses 7, 8 and 9 of the Bill).

But if MPs are serious about scrutinising the changes arising from Brexit, these amendments, and the related proposals to amend Standing Orders will, as currently drafted, offer only limited help. If MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI.

Continue reading