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Scottish and Welsh leaders call repeal bill a 'naked power grab' Brexit bill to cause constitutional clash with Scotland and Wales
(about 4 hours later)
Theresa May is facing a fresh constitutional clash with the Scottish government after Nicola Sturgeon threatened to block the “repeal bill”, dismissing it as a “naked power grab”. Theresa May appeared to be heading for an explosive constitutional clash over Brexit on Thursday, after the Scottish and Welsh governments said they could not support the great repeal bill – the key proposals drawn up to extricate Britain from the European Union.
The European Union (withdrawal) bill requires the consent of the Scottish parliament and the Welsh assembly, but Scotland’s first minister and her counterpart in Wales, Carwyn Jones, issued a joint statement saying they could not recommend the bill as it stands to their respective legislatures. The historic legislation, formally known as the European Union (withdrawal) bill, came under sustained attack after it was published on Thursday, with MPs and human rights campaigners, as well as leaders in Edinburgh and Cardiff, dismissing it as a Westminster power grab.
Sturgeon has been careful to avoid describing the consent of the Scottish parliament as a veto. There is a potentially thorny issue as to whether Westminster could override the Scottish parliament. Just hours after the government published the 66-page bill that will repeal the European Communities Act of 1972, and bring decades of EU law on to the UK statute book, the Scottish and Welsh leaders, Nicola Sturgeon and Carwyn Jones, rejected it.
The Scotland secretary, David Mundell, said Holyrood’s approval through a legislative consent motion would be required for the bill, adding: “I am optimistic we will obtain the consent.” He suggested that the impasse would be resolved through negotiation with Sturgeon. Campaigners and parliamentarians raised a series of other concerns about the legislation, including the risk that human rightscould be undermined and the threat that ministers could seize sweeping powers to tweak laws without full parliamentary scrutiny.
The Scottish National party leader is digesting her party’s losses in the general election last month. She may decide it is not in its interest to block the bill, instead opting to use the leverage to negotiate the transfer of as many powers as possible from Brussels to Scotland, rather than Westminster. In a joint statement, Sturgeon and Jones said: “We have repeatedly tried to engage with the UK government on these matters and have put forward constructive proposals about how we can deliver an outcome which will protect the interests of all the nations in the UK, safeguard our economies and respect devolution.
Mundell denied that the transfer was a power grab by Westminster and insisted that it would turn out to be a “power bonanza” for Scotland. Sturgeon would find it difficult to block a bill that would transfer powers from Brussels to Edinburgh, he added, but declined to specify which powers these may be, other than some relating to hill farming. “Regrettably, the bill does not do this. Instead, it is a naked power grab, an attack on the founding principles of devolution and could destabilise our economies.”
During the journalists’ briefing, Mundell spoke vaguely about environmental and energy issues, avoiding contentious topics such as fishing rights. The government confirmed that it would seek the backing of Holyrood and the Welsh assembly for the aspects of the legislation that affect devolved powers, through a “legislative consent motion”. But Sturgeon and Jones made clear they would not offer their approval unless the legislation was substantially redrafted.
“Needless to say, there will be a process row with the Scottish government because the Scottish government does process row, that is their speciality,” he said, adding that previous standoffs had been resolved. The government could still insist on pressing ahead – but doing so would underline the divisions within the United Kingdom, just as May battles to shore up her position and present a united front in Brussels.
In their joint statement, Sturgeon and Jones said: “We have repeatedly tried to engage with the UK government on these matters and have put forward constructive proposals about how we can deliver an outcome which will protect the interests of all the nations in the UK, safeguard our economies and respect devolution. Catherine Barnard, professor of European Law at the University of Cambridge, said: “The legal position is one thing, and the political position is quite another, particularly with a weakened prime minister.”
“Regrettably, the bill does not do this. Instead, it is a naked power grab, an attack on the founding principles of devolution and could destabilise our economies. The European Union (withdrawal) bill does not return powers from the EU to the devolved administrations as promised. It is becoming increasingly clear that the government faces a series of tough parliamentary hurdles at home, as well as the prospect of difficult negotiations in Brussels, before Brexit can be achieved.
“It returns them solely to the UK government and parliament, and imposes new restrictions on the Scottish parliament and national assembly for Wales. On that basis, the Scottish and Welsh governments cannot recommend that legislative consent is given to the bill as it currently stands.” Europhile Conservative backbenchers are calling for a clear signal that May has softened her approach to Brexit – and regard the election of two centrists, Nicky Morgan and Tom Tugendhat, to chair the Treasury and foreign affairs select committees as a signal that the makeup of the House of Commons has shifted decisively.
The SNP tabled an amendment to the bill opposing a second reading on the grounds that it contains no commitment to transfer powers to the devolved governments, fails to provide a unilateral guarantee of rights for EU nationals in the UK and is not accompanied by any economic analysis by the UK government of the full implications of withdrawal from the single market. The Broxtowe MP, Anna Soubry, said: “How many times do people like me have to tell them this? It’s all changed since 8 June. If [May is] going to stay and see this through, she’s got to step up. She’s got to get herself fully briefed; and she’s got to put David Davis back in his box and listen to Greg Clark, Amber Rudd, Philip Hammond. They should be giving the directions.”
Ian Blackford, the SNP leader at Westminster, said: “Until the UK government meaningfully engages with the devolved administrations and publishes a detailed economic analysis of the impact that leaving the single market or a no-deal scenario will have, then the SNP has no choice but to oppose a second reading of the bill in order to get answers from a government that has sought to evade scrutiny at every opportunity.” Davis himself struck an emollient tone on Thursday, seeking to reassure MPs about the scope of the new so-called “Henry VIII powers”, which will allow ministers to make changes to any laws necessary to achieve Brexit – and for two years afterwards.
He told the BBC that the powers would be used for “technical changes to make the law work,” adding, “it’s up to the House of Commons, if a statutory instrument is placed in front of the House of Commons, then the Commons decides if it debates or votes on it.”
Human rights groups Amnesty and Liberty joined Labour and the Liberal Democrats in urging the government to give further reassurances that human rights will not be undermined and, in particular, to incorporate the EU charter of fundamental rights into UK law.
Kerry Moscogiuri, Amnesty’s campaigns director‎, said: “It is now vital that parliament ensures our hard-won human rights don’t diminish after Brexit. The broad powers that the repeal bill grants ministers to change our laws are dangerously vague; they must not be used to roll back human rights that are in place to protect us all.”
The legislation makes clear that “the charter of fundamental rights is not part of domestic law on or after exit day”. Government lawyers believe that will make little difference in practice, as the charter interprets rights that are already enshrined elsewhere in EU law and will brought into domestic law.
But Emmy Gibbs, of the anti-trafficking charity ATLEU, who used the charter to bring a case about mistreated workers in foreign embassies to the supreme court, said: “It is not right that the removal of the charter under the great repeal bill will make no difference to workers.
“Without the charter, our clients – who complained of unlawful discrimination and breach of working time regulations – would have been left without any remedy, because the UK’s state immunity law prevents them enforcing those rights in the employment tribunal.”
Asked about the risk of a constitutional clash over the devolution aspects of Brexit, May’s spokeswoman said there was no plan for what might happen if Scotland or Wales refused legislative consent.
“That’s very pessimistic. We’re optimistic,” she said of such a scenario. Pressed on whether there was a contingency plan for this, she said: “Not that I’m aware of, no.”
This idea was, she stressed, still a long way off: “We’ve set out the bill today for the first time. It has to go through a process now. Within that process we will continue talking to the devolved administrations, who we hope will get behind it.”