LONDON — Theresa May is set for a constitutional showdown with Scottish First Minister Nicola Sturgeon and Welsh First Minister Carwyn Jones after the pair said they could not back the Great Repeal Bill in its current form.
The legislation, known formally as the European Union (withdrawal) bill, was published in full on Thursday. It will see the government take all EU law currently affecting Britain and transpose it into domestic law by repealing the European Communities Act (1972).
Sturgeon and Jones released a joint statement on Thursday accusing the UK government of a “naked power grab” and said they could not support the historic Brexit legislation unless May is willing to make some major revisions.
In the statement, the pair 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.
“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.”
Sturgeon and Jones argue that UK government will use the Bill as a means of seizing control of powers that ought to be devolved to the Scottish and Welsh administrations. These powers cover policy areas like energy, farming and fishing.
The UK government has pledged to seek the support of Scotland and Wales before pressing ahead with the Bill via a “legislative consent motion”. These motions relate to the convention that devolved administrations must give consent to legislation on matters that they would ordinarily have sovereignty over, under the so-called “Sewel Convention”.
This is just a convention and has no legal force. The UK parliament has legislative supremacy over all of the devolved administrations. If the Scottish and Welsh administrations refuse to sign any legislative consent motions relating to Brexit, May’s Conservative government can simply ignore it and push ahead anyway.
However, any refusal to consent will have political implications that a minority government under a weakened May would likely struggle to endure. As Catherine Barnard, professor of European law at the University of Cambridge told the Guardian: “The legal position is one thing, and the political position is quite another, particularly with a weakened prime minister.”
With Tory rebellions on aspects of the bill also highly likely, there is a very real risk that it will be defeated, or at the very least heavily amended. Such an outcome would throw into doubt May’s ability to pass the mountain of other Brexit-related legislation she has scheduled for this parliament.
The Bill is already highly contentious as Prime Minister May is likely to use a range of archaic statutory instruments — commonly dubbed Henry VIII powers — to amend swathes of legislation without any parliamentary scrutiny.
A Lords Constitution Committee warned earlier this year the Great Repeal Bill will “involve a massive transfer of legislative competence from Parliament to Government.” They added that “this raises constitutional concerns of a fundamental nature, concerning as it does the appropriate balance of power between the legislature and executive.”
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