Faculty highlights fears for devolution in Brexit bill



Concerns over “rigid control” of the Scottish Parliament and a greatly altered balance of power between Edinburgh and London have been raised by the Faculty of Advocates in evidence to MPs about the European Union (Withdrawal) Bill.

An inquiry by the Public Administration and Constitutional Affairs Committee of the House of Commons is looking at “Devolution and Exiting the EU”.

In evidence to the inquiry, the Faculty noted that, at present, the Scottish Parliament was prohibited from legislating incompatibly with EU law. Under the EUW Bill, it would be barred from legislating to modify retained EU law – EU law incorporated into the UK by the bill - without permission in an Order in Council.

“The first noteworthy point is that the provision for authorisation by Order in Council is devoid of criteria on which permission would be granted or refused. There is no proposal for any basis on which the grant or refusal of permission can be questioned, let alone challenged,” said the Faculty.

“The effect is therefore to freeze the body of EU law as at Exit Day and to confer on the Westminster government an absolute right in relation to any proposals to amend any Exit Day EU rules incorporated by the EUW Bill.

“It is difficult to envisage more rigid control over the Scottish Parliament’s ability to legislate in the areas of law concerned.”

The Faculty considered how the bill’s provisions would operate when a challenge was made by a party opposed to legislation of the Scottish Parliament, and used the recent case of minimum alcohol pricing as an example.

“It appears to us that adjudicating such a dispute after Exit Day will be a complex exercise, conducted against a background of great uncertainty about the applicable rules. The practical consequence may be a chilling effect on the introduction and/or implementation of legislation at Holyrood,” the Faculty stated.

“We would also observe that, although little formal change is being effected to the suite of powers possessed by the Scottish Parliament and Government, the intended allocation to Westminster of all powers returning from the EU will greatly alter the balance of power between Edinburgh and London, in a way not envisaged when the Scottish electorate voted for devolution in 1997.”