Scottish EU Withdrawal Continuity Bill passed by MSPs

The Scottish Parliament has passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, put forward by the Scottish Government as an emergency measure, despite continuing questions over whether it is within Holyrood's legislative competence.

Ministers presented the bill as something that would take effect in the event that they fail to reach agreement with the UK Government over the exercise of powers returning to the UK following Brexit. It would enable ministers to propose regulations to keep Scots law in line with EU law post-Brexit – though the Parliament insisted on keeping a level of control over what is proposed.

The dispute over competence centres on whether the Parliament can legislate now for powers it may have in the future, on the basis that they will not come into force until that time. Presiding Officer Ken McIntosh declined to certify the bill as within Holyrood's powers, but ministers went ahead on the basis of advice to the contrary from the Lord Advocate, James Wolffe QC.

During yesterday's debate Adam Tomkins for the Conservatives, who oppose the bill, challenged the Lord Advocate to refer the bill to the UK Supreme Court before Royal Assent, under a power in the Scotland Act 1998, for a ruling on the point. This has not previously been done with a Scottish Parliament bill, though similar referrals have been made of Welsh legislation.

A referral could also be made by the Advocate General or the Attorney General for the UK Government, and the bill could also be challenged in the courts following Royal Assent.

MSPs passed it by 95 votes to 32. The only other member to side with the Conservatives was Liberal Democrat Mike Rumbles, who said he would not vote for what he believed to be an illegal measure.

Brexit Minister Mike Russell said he still hoped to strike a deal with the UK Government rather than use the bill. The Welsh Assembly also passed a smilar bill yesterday. After the vote, he said: "We are still committed to discussions with the UK Government. We now expect them to acknowledge the overwhelming view expressed by the Scottish Parliament – and the Welsh National Assembly – and come forward with proposals that respect the devolution settlement and allow us to come to an agreement."

A clause in the bill enables MSPs to repeal it by a vote in the Parliament if agreement is reached wiuth the UK Government.