SCOTLAND’S top lawyer has hit back at the parliament’s presiding officer’s opposition to the SNP Government’s alternative Brexit repeal Bill.
If the Scottish Government’s legislation was out of order in Holyrood, James Wolffe said, then so to was the UK Government’s Brexit Bill in Westminster.
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Ministers introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill on Tuesday, in a bid to make sure Holyrood is prepared if Brexit happens without the consent of MSPs.
The governments in Scotland and Wales have brought forward continuity bills, with the UK Government failing to amend the EU Withdrawal Bill, which is effectively supposed to take the UK out of the EU and transfer all laws and powers from Brussels to Britain.
Clause 11 of that Bill automatically transfers those new powers to Whitehall, even if they’re already in a devolved area. The Scottish and Welsh Governments have both indicated that they cannot agree to this.
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Though there has been some movement, the UK Government still insists around 25 of the 111 devolved competencies returning from Brussels in areas devolved to Edinburgh should go to London and into UK wide common frameworks.
MSPs not consenting to the UK government’s Brexit repeal Bill won’t stop Brexit happening, but it will leave gaps in Scottish law.
The continuity Bill is “to ensure that Scotland’s laws can be prepared for the effects of EU withdrawal even if it does not prove possible to rely on the UK Bill.”
Ministers in Edinburgh and Cardiff insist they still want to reach an amicable solution with Whitehall, and that the continuity Bill, is a contingency plan if no amendments are made to the UK Government repeal bill before the March 22 deadline.
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In the opinion of Ken Macintosh and the Scottish Parliament’s lawyers, the bill falls outwith the competence of parliament.
But the Lord Advocate said the legislation had been “carefully framed” to make sure it was absolutely do-able by politicians in Holyrood.
He argued that if it was outwith the remit of parliament then so too was the EU Withdrawal Bill put forward in Westminster. It was a cordial exchange, with Wolffe thanking Macintosh for his “careful and serious” consideration, and insisting his disagreeing was not a personal criticism.
The key legal issue centres over timing and if the continuity bill is compatible with EU law when enacted, as required by the Scotland Act 1998.
Wolffe said with Brexit day little more than a year away there was “an urgent practical necessity to make provision ... to enable the law to operate effectively immediately upon and after the UK’s withdrawal from the EU”.
He added: “The legal obligation on ministers to comply with EU law will endure until the UK leaves the EU. This Bill does not change that obligation. Ministers will continue to be subject to legal requirements to transpose, implement and otherwise abide by EU law so long as the UK remains a member of the EU. This Bill does not alter those requirements.
“The Bill does nothing which will alter European Union law or which undermines the scheme of EU law while the UK remains a member of the EU. What the Bill does is to make provision for the continuity of the law immediately upon and following withdrawal from the EU.”
Wolffe insisted: “It is not incompatible with EU law to make provision to deal with the inevitable consequences in domestic law of withdrawal from the EU in this way. Indeed that appears to be the basis upon which the UK Government’s own EU Withdrawal Bill, upon which this Bill has been modelled, proceeds. If that is right and if contrary to the view of the Scottish Government this Bill is incompatible with EU law then the same reasoning would apply equally to the UK Government’s Bill.”
Even if Macintosh is not for shifting, the government say they will still introduce the bill – the first time a Scottish government will have ever pushed forward without the support of the presiding officer.
Tory MSP Adam Tomkins said: “On the question of competence, when it comes to compatibility with EU law, is a matter of legal validity not future or anticipated legal effect.
“This is the critical point of legal analysis on which the presiding officer relies. I think it’s correct.”
MSPs will vote tonight on whether the continuity Bill should be treated as emergency legislation and fast tracked through the parliament.
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