15/05/2018 – The Scottish Parliament has voted to refuse Legislative Consent to the EU (Withdrawal) Bill by 93 votes to 30, leaving the UK Government with a tricky decision to make.
Legislative Consent motions are not legally binding, but are not easily ignored by the UK Government either. They exist in order to transfer laws, passed by the UK Parliament and which concern devolved matters, into law within Scotland. In this case, and if consent was granted, the motion would have shown the Scottish Parliament to agree with the clauses within the EU (Withdrawal) Bill and consent to them becoming law.
However, every political party except the Scottish Conservatives joined together to decisively reject consent after agreeing with the Scottish Government’s assessment that Clause 15 (formally 11) represents a threat to the Scottish Parliament and devolution.
The argument put forward by the Scottish Parliament is that Clause 15 would allow the UK Parliament to retain some powers which should normally be reserved in order to agree common frameworks (a concept which is not disputed), but that the wording of the Clause would then allow them to pass legislation in these area which affect Scotland, without securing the Scottish Parliament’s consent. This would then allow the UK Parliament to pass laws on things like agriculture and food standards to which Scotland is fundamentally opposed.
As such, they want the Clause to be amended in such a way that means the UK Parliament must have the consent of the Devolved Parliaments before any such law is passed.
The UK Parliament believe this amounts to the power of a veto over the rest of the UK, which they say is a ‘red-line’. Both parties are now at an impasse but have pledged to continue negotiations.
So what happens next?
A Legislative Consent motion is not legally binding but it will force the UK Government to make a tricky decision. Do they impose the Bill on Scotland without the Scottish Parliament’s consent, or do they further amend the Bill?
If they go down the first route then this would represent an unprecedented move by the UK Parliament and risks plunging the UK into Constitutional Crisis. The Scottish Parliament have repeatedly stated that they would view this as a reason not to trust the UK Government in further negotiations over Brexit and that they believe it would undermine the very concept of Devolution. Such a reaction is likely to fuel further calls for Independence and will erode trust between Scotland and the UK Government.
The second route is not entirely off the table. The UK Parliament have until the summer to amend the EU (Withdrawal) Bill and negotiations between the two parties are ongoing. A Labour amendment was also passed which commits the Scottish Government to seeking views from the other Scottish Political Parties on how to resolve the dispute. One Labour suggestion is an inter-governmental panel made up of all Administrations which has the power to rule on disputes.
The way forward will be largely determined by the UK Government’s response and we will have to wait until the Bill makes its way through the UK Parliament to see what the ultimate outcome is.