A constitutional crisis is looming between Holyrood and Westminster after Nicola Sturgeon suggested a second referendum on leaving the EU may be “irresistible” and MSPs warned they will reject the Brexit Bill in its current form.
Three Conservatives are among the members of the Scottish Parliament’s Finance and Constitution Committee that has voted unanimously against recommending MSPs back the UK government’s EU Withdrawal Bill.
The recommendation in a report today will come as a blow to Prime Minister Theresa May’s hopes of getting the legislation through Holyrood, although MSPs would not be able to block Brexit even if they withhold consent.
In a further sign of the growing gulf between Mrs May and Ms Sturgeon over Brexit, the Prime Minister is today expected to announce the appointment of a “no deal” minister in her Cabinet reshuffle.
Mrs Sturgeon said the prospect “beggars belief” and suggested Mrs May was more concerned with appeasing hardliners in her party than in securing the best outcome for the UK in the Brexit negotiations.
The First Minister also hinted that she may be ready to back a second EU referendum.
“As the situation develops the argument for giving people a say on the final outcome may become irresistible,” she said.
The committee’s interim report said clause 11 of the European Union (Withdrawal) Bill “represents a fundamental shift in the structure of devolution” and could damage “the integrity of the devolution settlement in Scotland”.
The clash stems from concerns that the proposed Bill to repatriate the EU’s powers to the UK after Brexit are effectively a “power grab” on Holyrood’s responsibilities.
Committee convener Bruce Crawford said: “The committee is unanimous in its view that it is not in a position to recommend legislative consent to the EU Withdrawal Bill.
“The whole committee is of the view that clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland.”
The Bill was drawn up to transpose EU law into British law so the same rules apply on the day of Brexit as the day before, and will see EU responsibilities in devolved areas initially transferred to Westminster.
The UK Government said this will allow common frameworks to be created ahead of further devolution but the First Ministers of Scotland and Wales have branded it a Westminster “power grab”.
The Scotland Act, which brought about the creation of the Scottish Parliament, states that responsibility over key EU powers like farming and fishing lie at Holyrood and the SNP is demanding these be transferred to Scotland immediately after Brexit.
The interim report published by MSPs today says the “vast majority of the expert evidence it has received that clause 11 represents a fundamental shift in the structure of devolution in Scotland”.
It adds: “Regardless of whether the Scottish Parliament obtains additional powers or not, the effect of clause 11 will be to adversely impact upon the intelligibility and integrity of the devolution settlement in Scotland.”
The legislation does not contain any provisions guaranteeing that clause 11 will be a temporary measure, MSPs noted.
“The committee is of the view that clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland,”the report adds.
“The committee considers further that even if clause 11 is designed to be a transitional measure it fails to fully respect the devolution settlement.
In December, Scottish Secretary David Mundell told MPs that clause 11 would be amended - making the pledge after SNP, Labour, and Scottish Tory MPs all voiced concerns about its impact on devolution and the Union. The Finance and Constitution Committee has said it will produce a final report on whether the Bill should get legislative consent after these changes are made.
Deputy convener Adam Tomkins, one of the Conservatives on the committee, said work is “on-going” on a deal to find common UK frameworks.
“In particular, members welcome the UK Government’s commitment to respect the devolution settlement,” he said.
Scottish Brexit minister Mike Russell backed the committee’s findings.
He said: “We have been clear that all returning powers that relate to devolved areas must stay devolved after Brexit.
“Unless the UK Government makes significant changes, then in order to protect the Scottish Parliament, we will have no choice but to pursue the option of our own legislation - a Continuity Bill for Scotland.”