Scottish Government Legislative Consent Memorandum for the European Union (Future Relationship) Bill

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Following provisional agreement of the EU-UK Trade and Cooperation Agreement on 24 December 2020 (discussed in more detail in this SPICe blog), the UK and Scottish Parliaments are each due to meet on 30 December 2020 to discuss the Agreement, and in the UK Parliament’s case, to consider whether it should be ratified, a process which requires UK legislation.

The European Union (Future Relationship) Bill will be introduced in the House of Commons on 30 December (a draft was published a day earlier) and is expected to complete its legislative passage through both Houses of the UK Parliament in one day.  This would allow the Bill to receive Royal Assent on 31 December, before the new Agreement is due to come into force, on a provisional basis (due to the EU’s provisional application), on 1 January 2021. 

The need for legislative consent?

The Bill requires the legislative consent of the Scottish Parliament as many of its provisions relate to devolved matters.  The legislative consent convention, recognised in section 28(8) of the Scotland Act 1998, is that the UK Parliament will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.

The Scottish Government published its related Legislative Consent Memorandum on 30 December 2020.  In terms of the need for Legislative Consent, the Scottish Government wrote:

“The Bill is a relevant Bill within Rule 9B.1.1 of Standing Orders as it makes provision applying to Scotland for purposes within the legislative competence of the Parliament and alters the executive competence of the Scottish Ministers.”

The areas of the Bill highlighted by the UK Government as requiring legislative consent are specified in Annex A of the Bill’s Explanatory Notes and include:

  • powers for Scottish Ministers to implement the Agreement (clauses 31 – 33),
  • the general implementation provision (clause 29) and
  • specific provisions on criminal justice cooperation.

In its LCM the Scottish Government stated that clause 30 (which concerns the interpretation of the Agreement by UK courts) also requires legislative consent.

The concept of legislative consent is discussed in more detail in a previous SPICe blog.

The Scottish Government’s Legislative Consent Memorandum

In its Legislative Consent Memorandum, the Scottish Government indicated that it would recommend that the Scottish Parliament refuses consent to the European Union (Future Relationship) Bill.  It set out its reasons for the recommendation to refuse consent:

“The Scottish Government cannot support the FRA nor the Bill for the following reasons:

i.     the content of the FRA itself; and

ii.    the inadequate opportunity for parliamentary scrutiny of the FRA and the Bill.”

Devolved input into the negotiations

In the Legislative Consent Memorandum the Scottish Government highlighted several issues in relation to the negotiation of the EU-UK future relationship and the lack of devolved input into them.  These included:

  • That the UK Government decided against the option of seeking an extension to the transition period despite a request for such an action being made by the Scottish and Welsh Governments.
  • That the Joint Ministerial Committee on EU Negotiations (JMC(EN)) terms of reference set out that the four UK administrations should seek to agree the UK negotiating position but that, in the Scottish Government’s view, this did not take  place.
  • The JMC(EN) terms of reference also stated that the UK administrations should collectively oversee the negotiations.  The Scottish Government stated that this has never taken place and added that “the UK Government has carried out the negotiations alone and has not, even on a confidential basis, engaged in collective discussion with the devolved administrations on matters within the negotiations, such as prioritisation within the UK negotiating position or trade-offs within or between negotiating chapters”.

The impact of the new Agreement on Scotland

The Legislative Consent Memorandum then set out the Scottish Government’s view of the new EU-UK Trade and Cooperation Agreement.  In terms of setting out how the new Agreement was arrived at, the Scottish Government suggested that the UK Government’s approach in prioritising autonomy has meant “foregoing trade and other benefits that a more collaborative approach could potentially have secured”. 

The Scottish Government also used its Legislative Consent Memorandum to set out the main features of the Future Relationship Agreement along with the differences with membership of the EU and the impact on Scotland. In terms of key impacts of the deal, the Scottish Government highlighted:

  • Scottish businesses’ trading costs will increase substantially due to new non-tariff barriers.
  • In the fisheries section of the Agreement, for many of the key stocks Scottish fishermen will, in reality, have access to less quota now and for the next 5 years than they currently enjoy.
  • Scottish service providers will face new obstacles to providing services in the EU.
  • Changes to security cooperation with the EU will mean that Scotland’s police and judicial system will have reduced capacity and capability to combat crime.
  • Migration into Scotland will reduce by up to 50%, having an impact on sectors which rely on EU labour.
  • Scotland will have less ability to influence international environmental and climate change actions and will lose access to the world’s largest carbon market.
  • Scottish students will no longer be able to participate in the Erasmus programme.
  • It will be vital that Scotland has meaningful representation in the governance structures that will be created to manage the Agreement.

The European Union (Future Relationship) Bill

In its analysis of the European Union (Future Relationship) Bill, the Scottish Government highlighted that it only saw a copy of the Bill for the first time very late on 28 December.  Because of this, the Scottish Government:

“has therefore only been able to provide an initial analysis of its provisions and the effects on devolved competence. This is particularly challenging due to uncertainty inherent in the approach the Bill takes to giving effect the treaty into domestic law.”

Clause 29 of the Bill is significant as it makes changes to how domestic law is to be read, in the future, in order to implement the Agreement (and the associated Agreement on the Security of Classified Information).  “Domestic law” means the law of Scotland or of any other part of the UK.  In essence, clause 29 provides that domestic law is to be read as if it contained such modifications as are necessary for the purposes of implementing the Agreement and complying with the UK’s obligations under the Agreement.  According to the Bill’s Draft Explanatory Notes:

“This clause provides that domestic law is to have effect with the modifications that are required for implementation of the [Trade and Cooperation Agreement] and the Security of Classified Information Agreement. It only applies to provisions of the Agreements which are not implemented by another mechanism and is designed to ensure that all aspects of the Agreements are implemented to the extent necessary to comply with international obligations.”

The Scottish Government’s Legislative Consent Memorandum provides the following description of the purpose of Clause 29:

“Clause 29 provides for the implementation of the FRA to the extent it is not implemented elsewhere in the Bill itself or cannot be implemented administratively or through other domestic legislation. Clause 29(1) modifies any existing domestic law as necessary to give effect to the agreements (this general modification of enactments is referred to in the Explanatory Notes as the “gloss”). The operation of the gloss is subject to clause 29(2) to (4). First, the gloss will be subordinate to any other legislative implementation of the FRA (whether under this Bill or otherwise). Second, the date that domestic law is deemed to be modified by the gloss will depend on whether or not the relevant part of the FRA will be provisionally applied. Despite these limitations this provision is of potentially wide ranging and uncertain effect, including its effect on devolved competence.”

The Bill confers new powers on UK and Scottish Ministers.  The Scottish Government states that the Bill confers very wide-ranging powers on UK Ministers and devolved administrations to implement the Agreement by secondary legislation.  According to the Bill’s Draft Explanatory Notes, Clauses 31-33 in particular provide the following powers:

Clause 31 –power to make secondary legislation for the purposes of implementing the Agreement and implementing associated agreements, including related agreements which are concluded in the future.

Clause 32 – power to deal with certain matters that might arise as a result of the provisional application of the Agreements by the UK and EU where relevant. This includes dealing with matters that might arise as a result of a ‘gap’ between the end of the transition period and the start of the Agreements coming into force or being provisionally applied.

Clause 33 – power to make regulations which they consider appropriate for the purposes of implementing a decision to suspend, terminate, or resume, in whole or in part, the Agreements covered by the clause.

These powers are conferred on UK Ministers and on Scottish Ministers and the other devolved administrations.  They can be exercised separately by UK Ministers and the devolved administrations, or jointly by UK Ministers and one or more of the devolved administrations.

There is no requirement in the Bill for UK Ministers to seek or obtain the consent of the Scottish Ministers or other devolved administrations when using these powers in devolved areas.

Although not identified as requiring legislative consent by the UK Government, the Scottish Government also highlighted Clause 30 on “Interpretation of agreements” as in its view requiring consent. 

The Bill disapplies the legislation which gives the UK Parliament time to object to the UK ratifying (formally concluding) an international agreement.  That rule is contained in section 20 of the Constitutional Reform and Governance Act 2010, and requires international agreements to be laid before the UK Parliament for 21 sitting days before they can be ratified.  Section 20 is disapplied by clause 36 of the Bill.  It has not been disapplied, by this Bill, in relation to future agreements.

Time available for scrutiny

The Scottish Government also highlighted the “insufficient time for proper legislative scrutiny” as being a key concern:

“The Scottish Government believes that the time available for scrutiny of this legislation in both the UK Parliament and the Scottish Parliament is manifestly inadequate, especially in light of the significance of the decisions involved in this legislation. This is essentially bypassing Parliamentary scrutiny and democratic accountability and is unacceptable. The Scottish Parliament has only a single day available to it to consider this Bill, only hours after it has been published. Both houses of the UK Parliament will also sit for only one day in total to consider this legislation.”

Based on the limited time available for scrutiny ahead of the end of the transition period in just two days, the Scottish Government reiterated its disappointment that the UK Government refused to extend the transition period in June 2020. 

The Scottish Government’s Legislative Consent Motion

According to the Scottish Government, because of the UK Government’s policy approach to the future relationship negotiations and its failure to engage effectively with the Devolved Administrations:

“The Scottish Government cannot support the Future Relationship Agreement (FRA) which it considers will have a severe detrimental impact on Scotland, both in its specific terms and as the culmination of the process of leaving the EU, a mistake of historic significance. The Scottish Government also cannot support a Bill of such importance being rushed through its legislative processes without the opportunity for proper parliamentary scrutiny in either the UK or Scottish Parliaments.”

Later in the Legislative Consent Memorandum, the Scottish Government added that:

“In short this agreement is bad for Scotland, compared to both continued EU membership and alternative forms of future relationship, and no responsible government could recommend support for this agreement or consent for the implementing legislation.”

As a result of the recommendation to refuse consent, instead of lodging a legislative consent motion in relation to the Bill, the Scottish Government will instead ask the Scottish Parliament to vote on a motion expressly denying consent to the Bill.

What will happen if consent is refused?

In recommending a refusal to grant consent, the Scottish Government also addressed what it believes will happen to the Bill if consent is refused:

“The Scottish Government does not anticipate that the position expressed by the Scottish Parliament will receive any meaningful recognition or respect from the UK Government.  Nonetheless, the Scottish Government firmly recommends that the Scottish Parliament not give its consent to the European Union (Future Relationship) Bill.”

The UK Government’s view of the Bill

On 29 December, the Secretary of State for Scotland published a news release in which he called on Scotland’s MP’s to back the deal.  He said:

“We have secured a historic Free Trade deal with the EU that delivers for Scotland and the whole of the UK. This is a deep and wide-ranging deal, covering trade, security, travel, transport, energy, health and social security…

…The deal is good news for Scotland and I believe it is now time to move on from the Brexit debate and join forces in embracing our exciting future. Whether Leaver or Remainer in 2016 we need to come to together to make the most of our new opportunities.”         

Iain McIver, SPICe Research