Forgive me, then, if I just spend a little bit of time breaking this down and saying where we are. First, we are talking about a variety of bits of the bill, but particularly clause 10, schedule 2, clause 11, schedule 3 and some other slightly less important items.
The amendments I have sent you are essentially in five groups. Amendments 1 to 3 prevent the powers in the bill from being used to amend the Scotland Act 1998 by the UK Government alone. Any changes that are required to give effect to EU withdrawal or to implement international obligations can be made only through the bill itself, which requires legislative consent, or by a section 30 order, which is subject to procedure in the Scottish Parliament. If a change is required to give effect to the withdrawal agreement, that would require Scottish ministers’ consent, and that is for expediency. We are, therefore, trying to be helpful.
Amendments 4 to 6 mean that the UK Government can use its powers in devolved areas only with Scottish ministers’ consent. That would allow for the convenience of UK-wide orders when appropriate, but only with Scottish ministers’ consent when the powers in the bill are being used to make changes that could be made by the Scottish Parliament.
Amendments 7 and 8 remove the new restrictions and competence relating to retained EU law in clause 11. The competence of the Scottish ministers and Scottish Parliament would therefore be maintained on withdrawal from the EU in areas previously regulated by EU law.
Amendments 9 to 19 remove or modify the restrictions on Scottish ministers’ powers under the bill. Modifications to directly applicable EU law in devolved areas, such as justice or health, could therefore be made by the Scottish ministers and the Scottish Parliament, rather than exclusively by the UK Government. Requirements for UK Government consent, for example on a modification to do with quota arrangements, are replaced with a requirement to consult the UK Government.
Amendments 20 to 38 are consequential amendments that give full effect to the four major changes in policy that I have just set out.
The note that you have indicates in greater detail what this is about. It breaks down into four particular areas, with the first being UK ministerial powers. I stress that we are not saying that we approve of the UK bill in its entirety; we do not. For example, we think that there needs to be a restriction on UK ministerial powers and we accept a concomitant restriction on and framework for powers in Scotland.
The amendments, which we have agreed with the Welsh Government, cure the bill with regard to major objections from our two Governments. They do not amend the bill in other necessary ways, such as in relation to the charter of fundamental rights. The political parties in the House of Commons are all bringing forward lots of other amendments that deal with those matters. We are dealing with the core issues that the Scottish and Welsh Governments view as difficult—in fact, impossible—to accept.
The bill gives UK ministers a broad and wide-ranging set of powers. We recognise the need for powers, given the extraordinary challenges of preparing for EU withdrawal, but those powers should not be used to make fundamental changes to important laws such as the devolution statutes or the equality duties, and they must also, because of their breadth, be subject to appropriate higher levels of scrutiny. We recognise the usefulness of certain instruments being made on a UK-wide basis where the same or similar changes need to be made to a scheme that operates UK-wide. However, the fundamental principles of parliamentary accountability mean that when changes relate to devolved matters, there must be some mechanism for the Parliament to hold the Government to account.
The bill limits Scottish ministers’ powers in a number of ways. It prevents Scottish ministers from making necessary changes to an entire category of EU laws—directly applicable instruments—and it requires Scottish ministers to seek UK Government consent before certain types of instrument can be made. Those provisions are all inappropriate. The correct way to divide the powers is to do so in accordance with devolution. If a subject matter is not reserved, the decisions on how the corrections should be made are for the Scottish ministers and the Scottish Parliament to make.
Clause 11 is a new limitation on the powers of the Scottish Parliament. It means that while the UK Parliament has lifted from it the requirement to comply with EU law, all the matters covered by EU law on exit day are put beyond the powers of the Scottish Parliament. The bill allows any new limitation to be modified by order in council. That is not acceptable, since it assumes that where there is to be a common approach across the UK, it is necessary for the subject to be reserved—I made that point to Adam Tomkins earlier. Neither the Welsh Government nor the Scottish Government can recommend consent to a bill with clause 11 in it, so it must be removed from the bill. That is the proper constitutional position, and, as I say, it is the position that both we and the Welsh take.
On frameworks, as we set out in “Scotland’s Place in Europe”, the Scottish Government accepts that there may be a need for a common approach across the UK to some matters. Those must be agreed, not imposed. They cannot be negotiated against the background of clause 11, since that assumes that where a common approach is required, the subject must, in effect, be reserved. The UK Government insists that frameworks are needed to protect the UK single market and ensure the shared management of common resources. We insist that frameworks must respect the principles of devolution, but we accept that, in taking that approach, the same end will be achieved.
We do not say that the amendments are the only way forward; if people suggest that there is a different way to achieve the objectives that we have set out, of course we will discuss that with them. We are discussing the matter with all the political parties in the Parliament, and we will continue to do so. The Welsh Government is engaged in the same discussions with others in Wales, and obviously there is active discussion at Westminster about how the amendments should go forward. The two First Ministers sent the amendments to the Prime Minister yesterday as a suggested way forward, and we await a response to that.
You ask what would happen if the amendments were not made. The first consequence is that we would not bring forward a legislative consent motion, and in those circumstances the Parliament would not give legislative consent. We will give the Parliament the chance to vote on the issue at some stage, of course, but we hope that, between now and the last amending stage of the bill, which is when the legislative consent motion has to be passed, a solution will be found. We do not think that it is likely that last amending stage will happen before the turn of the year or even January, given the situation in the House of Lords. Therefore, there is time for a negotiated set of changes, and that is what we are looking for.
Two things will happen if that does not take place. First, if legislative consent is refused, the proper process under the Sewel convention is that the relevant parts of the bill should be withdrawn. If they are not withdrawn, we will be in absolutely uncharted waters. We spent last year in uncharted waters, but the unchartedness is getting worse, if I may put it that way. The Scotland Act 1998 makes it clear that the UK Parliament “will not normally legislate” on such matters,
“without the consent of the Scottish Parliament”.
That is embedded in our practice, so it would be a serious situation.
Secondly—and finally—we have been considering, as has the Welsh Government, a continuity bill. In our view, that is not the best way forward. There are issues that we could not deal with in a continuity bill. We could not repeal the European Communities Act 1972 in a continuity bill, nor would we seek to do so. However, such a bill would put in place the legislative framework that we need to have in place if we are to leave the EU. In those circumstances, we continue to consider that as an option, as does the Welsh Government. We will make a decision on it in due course.