Alternative Scottish Brexit legislation
Published: 03 Oct 2018

The Scottish Government's alternative to the European Union (Withdrawal) Act 2018 has been passed by Members of the Scottish Parliament (MSPs).

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Continuity Bill) has undergone considerable hours of debate, and has been put forward as part of an ongoing row over a UK framework of post-Brexit powers.

Scotland's Brexit Secretary Michael Russell has however stated he hopes to still be able to agree to a deal with the UK Government rather than use the Bill.

What is the Continuity Bill?

Currently, there are a whole host of powers which are technically devolved, but fall into EU-led frameworks for issues like agriculture and fishing.

When the UK leaves the EU, these powers will no longer be controlled from Brussels, and there is intense scrutiny from Holyrood and Westminister over how this will happen. For example:

  • where the powers would go;
  • how common frameworks are set up and administered.

So far, Holyrood has not given its consent to the European Union (Withdrawal) Act 2018, something Russell describes as "incompatible with the devolution settlement".

Without such consent, Westminster could pass legislation under it without certain provisions applying to Scotland, essentially leaving a legislation gap.

The plan is to fill it with the Continuity Bill, which would effectively be the Scottish Parliament's own version of the European Union (Withdrawal) Act 2018, bringing EU laws across onto the domestic statute book ahead of Brexit. They would then be free to amend or revoke them as they wish.

However, the situation is not straightforward, making a simple division of powers difficult due to the complex way in which EU, UK and Scottish law is linked together.

Controversy

There has been a fierce debate over section 13 of the Bill, which is not mirrored in the Westminster legislation, and would allow ministers to propose "keeping pace" with EU laws post-Brexit. This means they could maintain regulatory equivalence with the EU in key fields such as environmental protection.

This has been criticised as a "back door excuse for the SNP to hand powers back to Brussels".

There is also the wider argument that the Bill may not be within the Scottish Parliament's legislative remit.

Next steps

Although the Continuity Bill has been passed by MSPs, it is not yet on the statute books.

It has been referred to the Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland who will make a decision as to whether the Bill is within the Scottish Parliament's remit, or if it is fundamentally inconsistent with the European Union (Withdrawal) Act 2018 and should be struck down.

The Supreme Court is not expected to return a judgement until the autumn.