EU Continuity Bill was within competence of Scottish Parliament when it was passed

Scottish Parliament - Image credit: Anita Gould

The Scottish Government’s EU Continuity Bill was within the competence of the Scottish Parliament when it was passed, but it cannot become law in its current form, the Supreme Court has ruled.

Supreme Court president Lady Hale confirmed the Continuity Bill was within the legislative competence of the Scottish Parliament because it did not relate to reserved matters, with the exception of one section requiring legislative consent from Scottish ministers for certain UK legislation.

However, the court said the situation had changed since MSPs voted through the Scottish bill because the UK Parliament has since passed its EU Withdrawal Act.

The court ruled that what counts is when a bill receives royal assent to pass into law rather than the situation when it was passed, and the Scottish bill can no longer go through because the UK one has now superseded it.  

The Continuity Bill has not yet received royal assent to become law because the UK Government challenged in in the Supreme Court.

Because the UK act sets out some EU powers over devolved areas that will temporarily be reserved to Westminster, the Scottish act cannot now amend that.

The Scottish Conservatives’ constitution spokesperson, Adam Tomkins, tweeted that it was an “embarrassing day” for the nationalists.

However, the Scottish Government said that its position had been “vindicated” and called the UK Government’s decision to pass its EU Withdrawal Bill an “act of constitutional vandalism”, while Strathclyde University professor of public law Aileen McHarg tweeted that the ruling was generally “good news for the devolved parliaments”.

Commenting on the Supreme Court’s decision, Scottish Government Constitutional Relations Secretary Mike Russell said: "The Scottish Government's position has been vindicated by the Supreme Court judgment, which confirms that the Scottish Parliament had the competence to prepare its own laws for Brexit when the Continuity Bill was passed.

"Worryingly, parts of the bill have been thwarted as a result of steps taken by the UK Government.

“For the first time ever, UK law officers delayed an act of the Scottish Parliament from becoming law by referring it to the Supreme Court.

"Then the UK Government, for the first time ever, invited the UK Parliament to pass a bill which they knew would cut the powers of the Scottish Parliament without its consent.

“The UK Government changed the rules of the game midway through the match.

"This is an act of constitutional vandalism but that does not take away from the fact this judgment makes clear MSPs were perfectly entitled to prepare Scotland's laws for Brexit at the time this Bill was passed. The UK Government's arguments have been clearly rejected.”

Russell said the Scottish Government would “reflect on this judgment and discuss with other parties before coming back to Parliament to set out the best way forward”.

The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill was passed by 95 votes to 32 in the Scottish Parliament in March 2018.

This was the first time a bill had been passed by the Scottish Parliament despite the presiding officer saying it was outside the competence of the Scottish Parliament.