Judges asked to accept that Holyrood can rule on Brexit

SCOTLAND’S most senior law officer has told the Supreme Court it is ‘perfectly practical’ for Holyrood to press on with its own Brexit legislation. The Scottish Government yesterday put forward its case on the second day of a courtroom battle with the UK Government over the power to legislate on laws and powers coming back from Brussels from day one of Brexit.

Holyrood’s own Presiding Officer had concluded that the SNP’s Continuity Bill was ‘not within the legislative competence of the parliament’ and would not be compatible with EU law.

But Lord Advocate James Woolfe, presenting the Scottish Government case, told judges the Bill ‘plainly’ did not cut across EU law.

The Supreme Court is considering the issue after UK law officers asked it to reach a judgment on whether or not the Scottish legislation can be legally introduced.

The Continuity Bill was rushed through the Scottish parliament by the SNP after it refused to give consent to Theresa May’s EU Withdrawal Bill, which deals with what happens to laws controlled by Brussels on the day of Brexit.

Mr Woolfe insisted it was ‘perfectly practical’ for the Scottish Bill to prepare the statute book in anticipation of the UK leaving the EU.

He pointed out that this had been the approach taken by the UK Government with its own legislation.

The Lord Advocate added that it was not incompatible with EU law. He won the support of legal representatives of the Welsh Government, who branded the UK Government’s arguments against the legislation ‘wrong and incoherent’.

Responding to the argument that the Bill is incompatible with EU law, Mr Woolfe said: ‘There is no list of “devolved matters”.

‘The Scottish parliament may legislate about anything, as long as the legislation does not relate to one of the specified reserved matters, and as long as it legislates in a manner which respects the other limits on its legislative competence.’

On Tuesday, the UK’s Advocate General for Scotland, Lord Richard Keen, had told judges the Holyrood Bill relates to international relations powers which are not devolved to Holyrood.

He also claimed the Continuity Bill was ‘fundamentally inconsistent’ with the aims of the UK Government’s EU Withdrawal Bill, and that confusion over which parliament had jurisdiction over which European regulations would undermine Brexit.

But Mr Woolfe said yesterday that Lord Keen was taking too wide a definition of

‘Wrong and incoherent’

international relations and said the Bill ‘has effect only in the domestic legal order’.

The Supreme Court is likely to give a verdict in October.

It can opt to back either the Scottish Government’s argument that the Continuity Bill can be introduced in full or the UK Government position that it relates to international relations and is outside of Holyrood’s competence.

But experts believe the judges will conclude parts of the Bill are outwith the competence of the parliament and return it to be ‘corrected’.

The Bill would then have to go back to Holyrood and be amended, before detailed discussions between the two governments about how both their Bills can work together.

Closing the hearing, Lady Hale said the justices would ‘apply the wet towels’ to consider their judgment.