UK ministers begin court challenge to Brexit continuity bills

UK ministers have begun their promised legal challenge to the competence of the "continuity bills" introduced to their respective Parliaments by the Scottish and Welsh Governments, and subsequently passed.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, and its Welsh counterpart, are intended to act as an alternative to the EU Withdrawal Bill currently before the UK Parliament. Both devolved Governments at odds with Westminster as to which powers that will no longer be exercised by the EU should be transferred to them rather than to UK ministers, and their bills provide for the exercise of these disputed powers.

The challenge is based on the devolved Parliaments not having the power to do anything that conflicts with EU law. Holyrood's Presiding Officer Ken Macintosh declined to certify the Scottish bill as within the Parliament's powers, but Lord Advocate James Wolffe QC provided an opinion that the bill was "carefully framed so that it does not do anything or enable anything to be done, while the UK remains a member of the EU", and was "modelled, in this regard, on the UK Government's EU Withdrawal Bill".

Under the Scotland Act and the Government of Wales Act, any law officer can refer an Act of the respective Parliaments to the UK Supreme Court for a ruling on its competence. The Attorney General and the Advocate General for Scotland have now confirmed they have asked the court to rule on the issue.

Lord Keen, the Advocate General for Scotland, said: "By referring the Scottish Parliament's Continuity Bill to the Supreme Court, we are seeking legal certainty as to its competence.

"Given the presiding officer's view at introduction that the bill was not within the legal scope of the parliament, we believe it is important to ask the court to provide absolute clarity.

"In doing so we are following the process set out in the Scotland Act 1998. Particularly in the run-up to Brexit, it is vital that we avoid legal uncertainty in our statute book."

Both devolved Governments have promised to defend their legislation.