Scottish and Welsh governments publish Brexit amendments

In July, in the wake of the UK Government publishing its draft legislation to take the UK out of the European Union, the First Minister of Scotland, Nicola Sturgeon, and Carwyn Jones, her counterpart in Wales, released a joint statement condemning the proposals.

The European Union (Withdrawal) Bill, they said, should “protect the interests of all the nations in the UK, safeguard our economies and respect devolution.” They would label it, instead, as a “naked power grab, an attack on the founding principles of devolution” and one that could “destabilise our economies.”

This week, in a further act of coordination between the functioning devolved administrations, the Scottish and Welsh governments published 38 amendments to the Bill, almost all of which centre on protecting the powers conferred on Cardiff and Edinburgh by the Wales Act 2006 and Scotland Act 1998.

The prospective amendments are detailed below:

• Amendments 1 and 2 aim to prevent the power to correct deficiencies in retained EU law, along with the power to ensure compliance with international obligations, being used to amend the acts, referenced above, effecting the current devolution arrangements. 

• Amendment 3 would allow such amendments to be made to the 1998 and 2006 Acts, though only with the consent of the Scottish or Welsh administrations.

• To counter the ability, as currently drafted, of the UK Government to make statutory instruments in devolved policy areas, Scotland and Wales have posited amendments 4, 5 and 6, meaning that Whitehall ministers would require the consent Scottish or Welsh ministers before legislating on matters within those ministers’ ‘devolved competence.’

• In its present form, the Bill restricts the Scottish Parliament and the National Assembly for Wales in modifying retained EU laws that relate to areas of devolved responsibility. Scottish or Welsh ministers are also prevented from making, confirming or approving subordinate legislation that changes retained EU laws. Amendments 7 and 8 are designed to remove those restrictions.

• Amendments 9, 13 and 16 bring the powers to legislate on devolved issues into line with those granted to UK ministers on Westminster matters, the latter, unlike the former, currently not being subject to such constraints under the measures contained in the Bill. 

• Amendments 10, 11, 14, 17 and 18 remove the restrictions placed on the Scottish and Welsh ministers’ ability to amend directly applicable EU law incorporated into UK law, aligning the powers with those being awarded to UK ministers.

• Amendments 12, 15 and 19 replace requirements that the Scottish and Welsh governments secure the UK Government’s consent in specific circumstances with a requirement to simply consult London before producing provisions on certain matters.

• Amendments 20 to 38 are consequential to the principal amendments outlined above.

Having received its second reading earlier in the month, the Bill will move to the committee stage on an as-yet undetermined date. A Committee of the whole House will at that point consider amendments. Neither administration may alter Westminster legislation, thus, in the absence of any government support for the recommendations, these amendments will need to be embraced by the opposition benches. Indeed, Labour and Plaid Cymru have already tabled efforts designed to protect the devolved legislatures.

Scotland sends 59 MPs to parliament. Twelve are Conservatives, as are eight of Wales’s 40-strong delegation. The Scottish National Party and Labour, respectively, are otherwise dominant. They will look to exert significant pressure in the Commons.

In 2016’s EU membership referendum, the Welsh electorate voted to leave, while the public in Scotland heavily favoured remaining within the bloc. With both regions focusing on maintaining the freedoms they enjoy under devolution, rather than attempting to reverse the course of the UK’s withdrawal, how the government responds will make interesting viewing for us all.