Sturgeon ups ante on May with Scottish Brexit Bill
The Scottish Government forged ahead with its own EU Withdrawal Bill yesterday as Nicola Sturgeon looked to pile the pressure on Theresa May, despite being told it is beyond the scope of Scottish Parliament powers.
The move signals what is in effect a Scottish Brexit Bill and comes as the First Minister signalled that she “will not sign up” to something she believes undermines the principal of devolution.
In an unprecedented move, Scotland’s Brexit minister, Mike Russell, said the SNP will press on with its own post-brexit legal framework after Holyrood Presiding Officer Ken Macintosh judged it was outwith Holyrood’s competence.
The constitutional stand-off between Holyrood and Westminster over Brexit escalated last night as the Scottish Government forged ahead with its own EU Withdrawal Bill – despite being told it is beyond the Scottish Parliament’s powers.
Nicola Sturgeon, looking to ramp up the presure on Theresa May with what is in effect a Scottish Brexit Bill, said she “will not sign up to something that effectively undermines the whole foundation on which devolution is built”.
In an unprecedented move, Scotland’s Brexit minister, Mike Russell, insisted the SNP will press on with its own post-brexit legal framework for Scotland after Holyrood’s Presiding Officer Ken Macintosh judged it was outwith Holyrood’s competence.
And it could result in a court battle between the two governments over a Brexit “powers grab” after Mr Russell hinted that the SNP ministers are ready to fight any legal challenge from Westminster.
Ms sturgeon warned it is now “very likely” that the Holyrood would reject Westminster’s EU Withdrawal Bill when it comes before MSPS as a legislative consent motion (LCM).
The Scottish Government is now to accelerate its Withdrawal from the European Union (Legal Continuity) Bill after publishing the legislation yesterday. It will proceed on an emergency basis and is likely to be formally passed by MSPS at the end of next month.
Mr Russell said the Scottish Government is endeavouring to protect the devolution settlement. He said: “This is the first time since the reconvening of the Scottish Parliament in 1999 that the government has introduced a bill and the Presiding Officer has not been satisfied as to the legislative competence. We recognise that, we are mindful of what a serious moment it is.”
It emerged last night that Scotland’s top law officer, Lord Advocate Lord Wolffe, had judged that the proposed Scottish Government legislation was within Holyrood’s powers, in a clash with Holyrood lawyers.
Mr Russell told MSPS Scottish ministers “respectfully disagree” with Holyrood bosses and would be forging ahead.
“Scottish ministers are satisfied that it is within the powers of the Parliament to prepare for the devolved legislative consequences of the decision by the UK to leave the EU.
“We do not agree with the Presiding Officer’s view that it is incompatible with EU law to legislate in anticipation of what is to happen when EU law no longer applies.”
The Scottish Parliament’s judgment that the bill is not competent last night stood in contrast to the Welsh Assembly where lawyers there ruled that Cardiff Bay’s own Brexit Bill was legally competent.
The SNP are fearful that the current UK government plan to withdraw from the EU represent a “power grab” on the devolution settlement. It is claimed that more than 20 key powers being repatriated from Brussels, which belong at Holyrood, are to be held at Westminster. These include responsibility over key areas like farming and fishing.
The legislation is likely to win approval at Holyrood with the Greens already backing the move, while Labour and the Liberal Democrats could also be supportive.
But it could end up in court. Three of the UK’S most senior law officers still have 28 days to refer it to the UK Supreme Court after MSPS pass the legislation at Holyrood. Lord Wolffe is unlikely to refer, having judged it competent, but the current Advocate General Lord Keene, an ex-scottish Tory party chairman, as well as the Attorney General Jeremy Wright, a sitting Tory MP, could take a different view. If the Supreme Court finds against the legislation, it would fall. Q What is the Continuity Bill? A The Scottish Government’s Continuity Bill would assert Holyrood’s control over 111 powers in devolved areas like agriculture, the environment and public procurement that are currently managed by the EU. The bill would roll over current EU regulations in those areas into Scottish law. Q Why is it so controversial? A The UK Government says that some of those powers could have a direct impact on trade within the UK, and the UK’S ability to sign trade deals with other countries, if there was any
What happens now as the UK enters uncharted waters
divergence between England and the devolved nations. For instance, changes to the regimes on food labelling or animal health could cause serious problems for companies moving goods from one part of the country to another. Ministers in London want to have the final say on around 25 of the most important powers to ensure a ‘pause’ on any changes to existing rules until they can agree a ‘joint framework’ with Edinburgh and Cardiff to make decisions together. The Scottish and Welsh governments say they want to take part in joint frameworks, but insist that any restrictions on the disputed powers would undermine devolution. Q Does the Scottish Government have the authority to take control of the disputed powers? A At Holyrood, there’s some disagreement on this. The Presiding Officer of the Scottish Parliament says that MSPS can’t legislate to take control of powers that fall under existing EU treaties, but the Lord Advocate has advised the Scottish Government that because EU law will cease to apply from Brexit day, anything that takes effect after that point is within the competence of Holyrood. Scottish Ministers are free to push ahead with the Continuity Bill, though. In Cardiff, the Presiding Office of the Welsh Assembly has reached a different conclusion, saying a similar Continuity Bill is within competence. Q What is being done to sort this out? A The UK, Scottish and Welsh governments have been in talks for about a year to try and get an agreement on amendments to the EU Withdrawal Bill, which is the piece of Westminster legislation that will transfer EU law into UK statute, and which sets out how the 111 powers will be dealt with. Despite saying they have made progress, no deal has been reached yet. The UK Government says it has made a “considerable offer” in promising to amend the Withdrawal Bill to ensure more than 80 powers go directly to the devolved administrations. Q What happens if there isn’t a deal? A The Withdrawal Bill is currently before the House of Lords, and the UK Government has until 12 March to table amendments, so an agreement needs to be reached by then. The Scottish and Welsh parliaments will get a vote on whether they consent to the legislation, and ministers in Edinburgh and Cardiff have said they will refuse consent unless the changes meet their demands. Q So what’s next?
A After a summit last week, ministers from all sides will meet again next week, and if necessary, Nicola Sturgeon and Theresa May are scheduled to meet face-to-face in March - however, that might be too late. Q Will this block Brexit?
A Any delay to amending or passing the Withdrawal Bill at Westminster could throw the UK Government’s whole Brexit legislative programme into disarray. Failure to get the consent for the Withdrawal Bill from the devolved administrations would be politically challenging for the UK Government, and could boost demands for a second Scottish independence referendum. Ultimately, Westminster is the UK’S sovereign parliament, as was confirmed in a Supreme Court ruling last year on whether MSPS had to be consulted before triggering Brexit, so as long as MPS agree to the final Brexit deal later this year, the UK and Scotland are leaving the EU. But we’re entering unprecedented constitutional territory, and it isn’t clear how the issue will be resolved, or if the three governments will end up back in court before Brexit day.