The great Repeal Bill, how will Scotland have its say?

On 29 March 2017 the Government invoked Article 50, formally notifying the European Council of the UK’s intention to leave the European Union. The UK now faces the significant legislative challenge of transposing existing EU law into UK law in what will inevitably be a delicate and highly complex process. On 30 March 2017 the Government unveiled a white paper on what has been dubbed as the Great Repeal Bill which intends to facilitate this transition.

What is the Great Repeal Bill?

The Great Repeal Bill will repeal the European Communities Act 1972, convert the body of existing EU Law into UK Law and create the powers necessary to amend laws that will not operate appropriately once the UK has left the EU. There is the potential for significant powers being delegated to the Government to allow them to amend and repeal statute with limited scrutiny from Parliament.

A Scottish Perspective

From a Scottish perspective, what is of particular relevance is how the Great Repeal Bill will address devolved powers. Agriculture, fishing, public procurement and environmental law are all areas of EU law which relate to competencies which have been devolved to the Scottish Parliament. If EU law was to be converted directly into UK law, this would pose a problem.

The House of Lord’s Committee response on Devolved Powers

Given the constitutional importance of this Bill, the House of Lords made the decision to comment prior to the publication of the White Paper.

The committee made two main points in respect of devolved powers:

1) Devolved powers will be able to legislate in areas previously encapsulated in EU law. This could give rise to issues of overlap between reserved and devolved powers in areas where EU law will no longer exist. The committee noted that before Brexit occurs, the UK Government and Scottish Government will need to work out how these new interfaces will be managed.

2) Interaction with the Sewel convention- Under the “Sewel convention”, the UK Government requires consent from the Scottish Parliament if legislation relates to devolved matters.

The committee offered 2 options:

a. The UK Government will amended the whole body of EU law in preparation of the UK’s exit from the EU and then the devolved institutions, post Brexit, will take responsibility for the matters falling within their devolved competence. The Scottish Government would have to work closely with the UK Government to ensure any former EU Law is not lost in the ‘cracks’ between their jurisdictions; or

b. Prior to Brexit, ministers of the devolved administrations will prepare amendments to areas of EU law that will fall within their competence post Brexit. The UK Government would have to consult appropriately with the devolved institutions on these areas.

The approach to Devolved Powers in the White Paper

The White Paper is brief on its comments on devolved powers.

Powers relating to devolved areas may not necessarily flow directly to the devolved administrations. Instead, for example, in order to protect the freedom of businesses to operate across a single UK market, the UK Government will replicate the EU frameworks through UK law.

However, there will be ‘intensive discussions’ to establish where the common frameworks should be preserved going forward and it is suggested that the decision making powers of devolved administrations will increase.

The White Paper proposes that devolved ministers will have the power to amend devolved legislation in order to correct law that will no longer operate appropriately. This power is intended to correspond with that held by UK ministers.

Comment

What remains clear is that in drafting the Great Repeal Bill, the Government will need to be strong on the role of the Scottish Parliament in the process of transposing EU law into UK law. If any powers delegated in the Bill do enable UK ministers to legislate on matters devolved to the Scottish Parliament, and therefore ignore the Sewell convention, this could have significant political consequences, especially in light of Nicola Sturgeon’s desire for another referendum on Scottish Independence.

Co-authored by Catriona Herbert, trainee solicitor.