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EU Withdrawal Bill incompatible with devolution.

The Scottish Government has begun preparations to introduce an EU Continuity Bill to prepare Scotland’s laws for Brexit after UK Government legislation was called “incompatible with the devolution settlement” by a cross-party Holyrood committee.

The Scottish Government is opposed to leaving the EU but must prepare for that eventuality. The government also has an obligation to plan for the Scottish Parliament deciding not to give legislative consent to the EU Withdrawal Bill if necessary amendments to protect devolution are not made.

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

Full text below.

Dear Ken,

EU WITHDRAWAL – A CONTINUITY BILL FOR SCOTLAND

You will be aware of the Finance and Constitution Committee’s recent report on the legislative consent memorandum for the EU (Withdrawal) Bill. Like the Scottish and Welsh Governments, the Committee has concluded that the approach of the Bill is “incompatible with the devolution settlement in Scotland”.  It also backs the other criticisms of the Bill’s approach made in the memorandum, supporting the Scottish and Welsh Government’s proposed amendments on UK Ministers’ powers under the Bill, endorsing the principle that the Scottish Ministers should be given equal powers to UK Ministers under the Bill, and expressing its concern that the devolution statutes are not protected from amendment.

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.

We are copying this letter to Bruce Crawford MSP, Convener of the Finance and Constitution Committee and Graham Simpson MSP, Convener of the Delegated Powers and Law Reform Committee.

Yours Sincerely,

Michael Russell, Joe Fitzpatrick