In defence of devolution: Scottish Parliament approves Continuity Bill as emergency legislation

The alternative to UK Government legislation on Brexit could potentially be passed in three weeks

THE CONTINUITY BILL, the Scottish Government’s alternative to the UK Government’s EU Withdrawal Bill, has successfully been declared emergency legislation by the Scottish Parliament by a vote of 86-27.

This follows the announcement on 27 February by the Scottish Government that it would bring forward a bill intended to transfer devolved powers and areas of responsibility previously covered under EU law into Scots law once Brexit comes into effect.

The Continuity Bill was an immediate source of controversy upon its presentation, when presiding officer Ken Macintosh claimed that it was not within the legislative competence of the Scottish Parliament.

Responding to this, the Scottish Government “respectfully” disagreed, with its position being backed by Scotland’s Lord Advocate James Wolff, who argued before the parliamentary chamber on 28 February that the bill was “carefully framed” to be in line with both UK and EU law.

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The Scottish Government’s position was further supported by the decision of Macintosh’s Welsh counterpart reaching an opposing conclusion concerning similar legislation put before the Welsh Assembly. Welsh First Minister Carwyn Jones argued that both bills were not an attempt to block Brexit, but to protect the devolution settlements of both nations, as “time is running out”.

Now that the Continuity Bill has been declared emergency legislation, it is not necessary for a committee to take evidence on the proposals contained within the bill, or produce a report of their conclusions, as would happen under normal circumstances.

The haste is necessary, Scottish ministers have argued, as the Continuity Bill must be passed before the UK Government’s EU Withdrawal Bill makes its way through the House of Lords in order for the Continuity Bill to rendered effective.

The unprecedented events surrounding the Continuity Bill mark the latest escalation in the ongoing clash between the UK Government and the Scottish and Welsh Governments concerning what both Scottish and Welsh ministers consider a “power grab” of powers returning from the EU by Westminster. These powers, the governments of Scotland and Wales argue, should be returned to the devolved administrations of their respective countries.

READ MORE: Scottish Government prepares to reject EU Withdrawal Bill with emergency legislation

Scottish Conservatives MSPs variously argued that the legislation was unconstitutional, referring to Macintosh’s view that it fell outside of Scottish parliamentary remit, and unnecessary, given the Tory position that the crisis surrounding returning EU powers does not constitute an emergency.

Concerns were also raised, particularly by Labour MSPs Neil Findlay and Johann Lamont, regarding the possibility that the speed with which the legislation could be passed would rule out effective parliamentary scrutiny.

Michael Russell, minister for UK negotiations on Scotland’s place in Europe, who originally presented the Continuity Bill, noted concerns regarding scrutiny, but stuck by the Lord Advocate’s interpretation of the bill’s legality and constitutional veracity, a view supported by the Scottish Greens.

However, the possibility remains that the bill could be challenged by the UK Government in the Supreme Court. The Scottish Government has said it remains open to the possibility of a salvaged agreement with the UK Government, but unless concerns regarding the protection of devolution were addressed, it is unlikely legislative consent for the Withdrawal Bill will be given by the Scottish Parliament.

Picture courtesy of First Minister of Scotland

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