Scottish Government publishes alternative EU withdrawal bill, despite ruling of presiding officer

The Scottish Government has published its own alternative to the UK Government’s EU Withdrawal Bill, despite the Scottish Parliament’s presiding officer, Ken Macintosh, ruling that it sits outside Holyrood’s competence.

The Scottish and Welsh governments have been stuck in deadlock with the UK Government over the effect of the EU Withdrawal Bill on devolved powers, with both administrations suggesting the legislation would undermine the basis of devolution.

The Scottish Government has responded by tabling its own draft legislation, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which aims to prepare Scotland for Brexit, so that the parts of EU law relating to devolved powers will retained after the UK leaves the EU.

Speaking in the chamber, Brexit Minister Mike Russell expressed regret that the Scottish Government could not recommend MSPs provide legislative consent to the EU Withdrawal Bill, and that he believed it was incumbent upon ministers to provide alternative legislation.

With the Welsh government introducing similar legislation simultaneously, Russell said the Scottish Government had introduced its own bill after UK Government legislation was called “incompatible with the devolution settlement” by a cross-party Holyrood committee.

However, in a dramatic intervention, PO Ken Macintosh ruled the bill sits outside the competence of the Scottish Parliament, which could mean that legislation, if passed, could be open to legal challenge.

The move is likely to lead to further dispute between the Scottish and UK governments, while Scottish Conservative Shadow Cabinet Secretary for the Constitution Adam Tomkins described it as both “unwelcome and unnecessary”.

The Brexit Secretary said he did not agree with the PO’s decision, while the presiding officer of the Welsh Assembly approved the continuity bill introduced by Welsh ministers in Cardiff.

Meanwhile Russell confirmed that the Lord Advocate is satisfied the continuity bill is within the legislative competence of the Scottish Parliament.

Russell said: “If the UK Government drops its power grab then it may still be possible to reach agreement, in which case we would not need to proceed with the continuity bill.

“But we are proposing this bill should be put through on an emergency timetable to ensure it becomes law in time to make the necessary preparations.

“It must be stressed that the Scottish Government can only introduce this bill if we are satisfied that it is within the powers of the Parliament to do so.

“The Lord Advocate will answer a written question on this matter and because of the importance of this issue, if Parliament agrees, will make a statement in the chamber tomorrow.

“In addition the Presiding Officer of the National Assembly of Wales has approved the Welsh continuity bill.

“The statement from the Scottish Parliament’s Presiding Officer on legislative competence does not in any circumstance prevent the Scottish Government from introducing or progressing any bill – nor does it prevent the Scottish Parliament from approving this bill. We are determined to protect the devolution settlement that the people of Scotland voted for.”

If passed the continuity bill would give the Scottish Parliament a greater role in scrutinising proposals for changes to laws as a result of Brexit, while it would also allow Scottish ministers to retain the EU Charter of Fundamental Rights in law.

The bill also contains a power for Scotland to keep pace with EU law after Brexit.