Holyrood set for court battle after passing own Brexit law
THE Scottish and UK governments face an unprecedented court battle after MSPS ignored the advice of Holyrood’s Presiding Officer and passed their own alternative Brexit law.
SNP Brexit minister Michael Russell said the EU (legal continuity) bill would provide extra clout in negotiations to prevent a “power-grab” of devolved EU powers. It coincided with the Welsh Assembly passing an equivalent continuity bill in Cardiff Bay.
Mr Russell told Holyrood: “Today starts a new chapter. The Scottish and Welsh parliaments will be armed with an alternative to the way in which the UK government wishes to treat devolution. We will not go naked into the negotiating chamber any longer.
“So now the ball is firmly in Westminster’s court. If they want to come to the table and discuss these issues – and I hope they do – they know we have the alternative.”
However, the UK Government is now expected to ask the Supreme Court for a ruling on its legality – it would be the first time London has sought to overturn a Holyrood bill.
Presiding Officer Ken Macintosh said last month he believed the bill was ultra vires as it breached EU law, but SNP ministers, backed by the Lord Advocate, insisted it was legal and pressed ahead regardless – a controversial first for devolution.
After barely three weeks at Holyrood, the legislation was passed by 95 votes to 32.
Only one Libdem MSP and the Scottish Conservatives, who tried unsuccessfully to insert a “Union guarantee” to freeze Holyrood’s powers after Brexit, opposed the bill.
The vote followed months of wrangling between Edinburgh and London over the scope of the EU Withdrawal Bill at Westminster.
The UK Government wants 24 key devolved policy areas to lie at Westminster after they return from Brusssels to allow the creation of Uk-wide common frameworks in agriculture, fishing, the environment, food standards, and procurement.
SNP ministers want the frameworks agreed by consent, not imposed, something the UK regards as a veto power.
The Continuity Bill is a fallback which would transfer devolved EU law into Scots law after Brexit if the two governments cannot resolve their differences by May, the deadline for amending the EU Withdrawal Bill in the House of Lords.
Mr Russell said his preference was a deal on the EU Withdrawal Bill, but it would have to be heavily amended first.
He said the Continuity Bill would ensure Scots law operated effectively following EU withdrawal if Holyrood could not give legislative consent to parts of the UK bill.
A UK Government spokesperson said: “Our focus continues to be on finding an agreed way forward with the devolved administrations on the EU Withdrawal Bill. Everyone agrees this is the preferred option. As with all Scottish Parliament bills, the
It’s real purpose is to create legal chaos and legal confusion
competence of the Continuity Bill will be considered by the law officers.”
In one of the most dramatic moments of the Stage 3 debate, Libdem MSP Mike Rumbles dissented from party colleagues to announce he would vote against the bill.
He said he believed it would be referred to the Supreme Court and found illegal, and he wanted “no part” of legislation that would “greatly damage” Holyrood’s reputation.
Tory MSP Adam Tomkins said the bill was “bad law”, reckless, unwelcome and unnecessary, adding: “It’s real purpose is to create legal chaos and legal confusion.”
Tory Murdo Fraser said all the powers the SNP complained would go to Westminster under the UK legislation would stay in Brussels under the SNP’S plan to remain in Europe.
Labour MSP Neil Findlay said his party backed the bill, but was not giving the SNP a “blank cheque” on the constitution.