The Scottish Government published the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“Continuity Bill”) on Tuesday 27 February, something it previously announced it would need to do in the event that agreement could not be reached with the UK Government on amendments to the EU Withdrawal Bill (“Withdrawal Bill”). While discussions on the Withdrawal Bill are still ongoing, the Scottish Government has taken the view that it needs to start preparing for an unsuccessful outcome.

Our next post will cover the arguments about whether the Continuity Bill would be within the Scottish Parliament’s legislative competence, but we will first briefly consider why the Scottish Government considers the Continuity Bill to be necessary, and what it does.

What are the perceived issues with the UK Bill?

The Withdrawal Bill, which is currently passing through the UK Parliament, is intended to repeal the European Communities Act 1972 and so give effect to Brexit. However, it will keep in place all existing EU laws and EU-derived laws as they apply in the different jurisdictions of the UK at the point of Brexit. This will keep all current law in place pending any future decision of Parliament (or, where appropriate, a devolved legislature) to amend or repeal it in future. The alternative would be the risk that a lot of EU law could disappear from UK law overnight, leading to confusion about what the law is and potentially ‘gaps’ in some key areas.

The Withdrawal Bill will also allow ministers to amend this “retained EU law” so that it continues to make sense after the UK is no longer in the EU.

However, much of EU law applies in areas that are not specifically reserved to the UK Parliament under the Scotland Act 1998, such as agriculture and fisheries. The Scottish Parliament and Scottish Government can make laws and take action in these areas to the extent that EU law allows (and the same is true, though to varying extents, in Wales and Northern Ireland). The Withdrawal Bill as drafted simply replaces the restriction on the Scottish Parliament legislating incompatibly with EU law with one that stops it making laws that modify “retained EU law” (other than in matters for which it is responsible under the current settlement, such as the administration of farm subsidies).

The Scottish Government believes that this is inconsistent with the principle in the existing devolution settlement relating to the ‘split’ of power between Holyrood and Westminster, which assumes the Scottish Parliament will have the power to legislate in an area unless it is explicitly reserved to the UK Parliament.

The UK Government’s position is that the devolution settlement assumed that, since the whole UK had to comply with EU law (e.g. the harmonised rules on animal welfare and environmental protection), there was nothing the Scottish (or indeed UK) Parliament could do in these areas that would disrupt the internal operation of the UK economy. Outside the EU, different parts of the UK adopting different rules in these areas could complicate intra-UK trade.

For more on the Withdrawal Bill and the controversies around it, see here for the briefing we issued in September last year. It is perhaps indicative of the impasse on the Bill that there has still not been much movement on the issues we identified then.

The Withdrawal Bill will alter the limits on the Scottish Parliament’s legislative competence, which by convention the UK Parliament will not do without the consent of the Scottish Parliament. The UK Government has acknowledged this convention will in principle apply to the Withdrawal Bill, though it should be stressed that this does not mean the UK Parliament would be legally unable to pass the Withdrawal Bill (even in its current form) without consent – there is no veto. See here for our commentary on a similar issue when it arose in relation to the Gina Miller Brexit case.

The Scottish Government, and the Scottish Parliament’s cross-party Finance and Constitution Committee, have both suggested that the Withdrawal Bill as currently drafted is incompatible with the devolution settlement, and that legislative consent should therefore be refused.

What is the Continuity Bill for?

If legislative consent is indeed refused, the UK Government would broadly have two options:

  • Amend the Withdrawal Bill to remove the limitation placed on the Scottish Parliament’s competence in relation to retained EU law, and presumably also the powers currently conferred on the Scottish Ministers to amend legislation in relation to matters for which they are currently responsible. The Bill might also be amended to exclude Scots law, outside of reserved areas, from the scope of retained EU law.
  • Proceed with the Withdrawal Bill notwithstanding the lack of consent, without removing the limitation on the Scottish Parliament’s ability to legislate in areas where its competence is currently restricted by EU law (though perhaps with some amendment to try to deal with some of the objections, even if those were not enough to satisfy the Scottish Government).

The Continuity Bill is premised on the first scenario, as it would take over the job of converting EU law in all non-reserved areas into Scots law, and give the Scottish Government equivalent powers to those conferred in the Withdrawal Bill – i.e. to make amendments that would enable that law to function properly post-Brexit.

In the second scenario a number of significant legal and constitutional questions would arise, including as to the relationship between the Withdrawal Bill and Continuity Bill (assuming the latter was still passed). However, those questions would be extremely technical and complex, and the political process has not (yet) reached the point where either side is suggesting that outcome, so we will leave those to be dealt with if and when that hypothetical situation arises.

Part 2 of this post will deal with the argument over whether the Continuity Bill is within the legislative competence of the Scottish Parliament.