Scottish Government’s continuity bill ‘carefully drafted’ so that it does not breach EU law, says Lord Advocate

Lord Advocate James Wolffe - Image credit: Scottish Parliament TV

The Scottish Government’s continuity bill has been “carefully drafted” so that it does not breach EU law, the Lord Advocate told MSPs.

In a statement to the Scottish Parliament the Lord Advocate, James Wolffe said it was within the legislative competence of the parliament to pass the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

Presiding officer Ken Macintosh had said that the Scottish parliament did not have the power to enact the bill.

In a letter, Macintosh said that the bill "anticipates the impact of the withdrawal of the United Kingdom from the European Union" and "assumes that the parliament can make provision now for the exercise of powers which it is possible the parliament will acquire in the future".

The Lord Advocate replied: “Yesterday, you stated your view that the provisions of the bill are not within the legislative competence of the Parliament.

“I am grateful to you for the careful and serious consideration that you have given to the matter and for the way in which you have expressed your conclusions. In stating that the Government disagrees with those conclusions,

“I would not wish it to be thought that I am expressing any criticism of you.

He said the bill was designed to do two things: to enable a smooth transition from the EU and to make sure that that is done in a way that does not involve any breach of European Union law as long as the UK remains a member of the EU and would not take effect until the UK left the EU.

Wolffe said that if the Scottish Parliament bill was breaking EU law in legislating for powers the parliament would obtain after Brexit, so too would the UK Government’s Brexit bill be.

“It is not incompatible with EU law to make provision to deal with the inevitable consequences in domestic law of withdrawal from the EU in that way.

“Indeed, that appears to be the basis on which the UK Government’s own European Union (Withdrawal) Bill, on which the continuity bill has been modelled, proceeds.

“If that is right, and if, contrary to the view of the Scottish Government, the continuity bill is incompatible with EU law, the same reasoning would apply equally to the UK Government’s bill.”

The statement by the Lord Advocate was unprecedented

However, he acknowledged that there was a legal question of whether the Scottish Parliament had competence “and one that could, ultimately, if necessary, be tested in the courts”.

The statement was unprecedented in that the Scottish Government has never before attempted to pass a bill that the presiding officer had ruled to be outwith the competence of the parliament.

MSPs will debate today whether to treat the bill as an emergency bill, allowing it to be rushed through.