Scottish Government changes tack on EU continuity law

The Scottish Government will not seek to amend its bill on the continuity of EU law following Brexit, significant parts of which were held ultra vires by the UK Supreme Court, but will propose new legislation to enable devolved laws to keep pace with the EU if Brexit occurs.

Constitutional Relations Secretary Mike Russell has confirmed the decision in a letter to the Scottish Parliament’s Presiding Officer, following cross-party discussions about the implications of the Supreme Court judgment late last year. The court ruled that apart from one provision, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was within the Parliament's powers at the time it was introduced, but that retrospective amendments to the Scotland Act by the UK Government's EU (Withdrawal) Act meant that much more of the bill was incompetent.

In his letter, Mr Russell states that ministers have “reluctantly” decided not to move for reconsideration of the Continuity Bill. Instead, the Scottish Government will ensure the choices made by the Scottish Parliament are respected by:

• bringing forward new legislation to ensure Scots law continues to align with EU law;
• strengthening environmental protection, including seeking opportunities to legislate;
• looking at how best to safeguard EU human rights values; and
• agreeing new protocols with the Scottish Parliament, which are now in place, to give MSPs more scrutiny over Brexit legislation.

He wrote: “As Lord Reed, Deputy President of the Supreme Court, observed in a recent speech given in Dover House: 'the consequence is that it is legally possible for the UK Government to react to the passage of a bill in the Scottish Parliament by making a reference and then persuading the UK Parliament to amend the Scotland Act so as to render the bill invalid'. This is a significant development, and one which Government and Parliament will want to reflect on.

“That being the case – the Continuity Bill having been in part retrospectively denuded of its force – Scottish ministers have reluctantly come to the conclusion that we should not at this point move for its reconsideration. This decision has been taken following a series of meetings with representatives of parties across the Chamber.

“However we are determined to respect the choices the Scottish Parliament made when passing the Continuity Bill to the maximum extent possible”.

Mr Russell pointed out that the bill contained a system allowing the sifting and upgrading of EU exit-related SSIs by the Scottish Parliament, and this had already been achieved through protocols agreed between the Government and Parliament.

A consultation on maintaining the role of environmental principles in developing future Scottish policy, legislation and governance was issued last month and closes on 11 May. Ministers “will look for opportunities to legislate, taking account of the results of the current consultation exercise and any further consultation that is needed”, designing any interim arrangements that may be needed.

As for retaining the Charter of Fundamental Rights, Mr Russell advised: “Doing so in the way envisaged by the bill is no longer possible... but the Government remains committed to the choice the Scottish Parliament made. The best way to enshrine respect for the important values reflected in the Charter in Scots law will be considered as part of the Government’s response to the report of the First Minister’s Advisory Group on Human Rights Leadership.” A National Task Force is being established to take that work forward.

Stating that the Parliament was now approaching the end of the programme of secondary legislation required to keep Scots law functioning after EU exit, Mr Russell concluded: “Finally, I can confirm the Government’s intention to bring back the provisions on keeping pace with EU law in new legislation. The extent to which devolved law aligns itself with the law of the EU should be a decision for the Scottish Parliament to take, not the UK Government. This Government is committed to no regression in standards or protections should EU exit take place, and the replacement of regulatory powers lost in consequence of EU exit will be essential to ensure that.”