ANALYSIS

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill introduced by John Swinney in the Scottish Parliament yesterday is designed to increase the pressure on the UK Government to reach an agreement with the Scottish Government over the EU (Withdrawal) Bill making its way through the House of Lords.

At the heart of the dispute between the two governments over the bill is not the need to make provision for the legislative consequences of Brexit, which is what the EU (Withdrawal) Bill is essentially about, but the destination of competencies in devolved areas such as agriculture and the environment that will return to the UK when it leaves the EU.

The widely held assumption before the bill was introduced was that those competencies powers would return to Edinburgh once the UK had left, leaving the Scottish Parliament free to legislate in those areas as it saw fit.

The UK Government, however, proposed in the bill that those powers should first return to London, as a preliminary to ‘intensive discussions’ over where they should lie, following which some but not necessarily all of them would be devolved.

For the Scottish Government this was and is unacceptable.

Its view, resolutely maintained from the outset, is that powers coming back from Brussels should lie where they fall under the devolution settlement, and that ‘common frameworks’ governing matters such as animal health and food safety – the need for which it fully accepts – should be a matter for agreement rather than imposition by Westminster.

Discussions since the EU (Withdrawal) Bill was introduced last summer have made progress but have yet to produce a breakthrough.

In the most recent round of negotiations the UK Government made what was described as a ‘generous offer’ which would see the majority of the powers go straight to Edinburgh but some held back.

For the Scottish Government this offer does not go far enough.

It is therefore threatening to withhold the Scottish Parliament’s consent to the bill and to make its own provision for dealing with the legislative consequences of Brexit. It is a strategy not without its risks. The assumption is that the UK Government will amend the EU (Withdrawal) Bill so it does not apply to Scotland, leaving the Scottish Government with ‘no choice’ but to make the provision it now proposes.

There is no guarantee, however, that the UK Government will do that – that it will not simply press ahead – paving the way for a ‘battle of the bills’ which could end up in the Supreme Court.