Scottish ministers plan emergency EU Bill if UK Bill not changed

Scottish ministers are preparing to introduce an EU Continuity Bill to freeze EU law in devolved areas after Brexit, if the UK Government fails to amend its own EU (Withdrawal) Bill to protect the devolution settlement. 

A joint letter from Michael Russell, Minister for Scotland’s Place in Europe, and Joe Fitzpatrick, Minister for Parliamentary Business, to Scottish Parliament Presiding Officer Ken Macintosh sets out that the Scottish Government is developing a Continuity Bill for Scotland and, if necessary, will introduce it in the Scottish Parliament in February.

The move follows a unanimous interim report by the cross-party Finance & Constitution Committee at Holyrood, which described the legislation currently before Westminster as "incompatible with the devolution settlement". (Click here for news report.) As the bill stands it looks certain to fail to secure a legislative consent motion at Holyrood.

First Minister Nicola Sturgeon has described as a "power grab" the clause that would see powers in devolved areas return from Brussels to London rather than Edinburgh, pending agreement on their further transfer. The UK Government has promised to bring forward amendments to the clause, but this week admitted that these would not be ready before the bill completed its Commons stages.

The ministers' letter to the Presiding Officer states: "The Scottish Government’s preference is to work collaboratively with the UK Government on the legislative consequences of EU withdrawal, including through the EU (Withdrawal) Bill. Discussions continue on the potential for amendments to be made, but as things stand we need to prepare responsibly for the possibility of consent being withheld. To that end, our officials are developing a Continuity Bill for Scotland. This letter is intended to give you and your officials notice of the likely introduction of this bill in February and its submission to you for pre-introduction scrutiny later this month.

"In its report, the committee has noted that if a Continuity Bill is introduced an expedited timetable is likely to be required and has recommended that the Scottish Government engage with the Parliament regarding the timetable for, and scrutiny of, the bill. We can confirm that our intention would be to seek a timetable for the Continuity Bill which would allow it to be considered and passed by the Scottish Parliament quickly, giving certainty about the approach in Scotland and to enable enough time for the necessary instruments to be prepared and scrutinised. We have asked officials to begin engagement with their parliamentary counterparts over the timetable for, and options for scrutiny of, the Continuity Bill.

"The purpose of introducing the bill is to ensure that Scotland’s laws can be prepared for the effects of EU withdrawal even if it does not prove possible to rely on the UK Bill. It does not mean that we have definitely resolved to reject the EU (Withdrawal) Bill. But unless and until the necessary changes to the bill are made, the Scottish Government must provide for an alternative so that on any scenario there is a legislative framework in place for protecting Scotland’s system of laws from the disruption of UK withdrawal from the EU."

While legally highly contentious, the bill could be used as political leverage to bring pressure on the UK Government to amend its own bill.