Holyrood and Westminster in court showdown over Brexit "power grab"

Remigio Civitarese
Aprile 17, 2018

Announcing the decision today to take legal action, the Attorney General, Jeremy Wright QC MP said: "This legislation risks creating serious legal uncertainty for individuals and businesses as we leave the EU".

The Supreme Court is also being asked to rule on the legality of the Welsh Assembly's Continuity Bill, which was passed on the same day as Scotland's version.

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

James Wolffe QC, the lord advocate and Scotland's chief law officer, said he believed the measures were legal, in part because they could only be enacted after the United Kingdom had left the EU. "Particularly in the runup to Brexit, it is vital that we avoid legal uncertainty in our statute book".

Mike Russell, the Scottish government's Brexit minister, said he also wanted to resolve the dispute through negotiation, but said the lord advocate would defend Holyrood's legislation if it went to court.

He added: "The Lord Advocate will be arguing in the Supreme Court that it is within the powers of the Scottish Parliament to prepare for the consequences for devolved matters of United Kingdom withdrawal from the European Union".

"The Scottish Government has made clear it can not recommend the Scottish Parliament consent to the Withdrawal Bill in its current form".

"Alongside the Welsh Government, we have always said our preference would be to reach an agreement with the UK Government to amend the EU Withdrawal Bill to respect the powers of the devolved administrations and both Governments are ready to continue meaningful talks to further discuss potential solutions".

"While the Scottish Government is not opposed to UK-wide frameworks in certain areas when these are in Scotland's interests, this must only happen with the agreement of the Scottish Parliament".

Both the Scottish and Welsh governments put forward their own Continuity Bills after the United Kingdom government failed to amend Clause 11 of the EU Withdrawal Bill, described by both Nicola Sturgeon and Carwyn Jones as a power grab.

That bill is now in the Lords, and is likely to finish its process through the UK Parliament and be signed off by the Queen at some point in May.

Bill was introduced to make provisions for continuity of law after withdrawal from the EU.

Scottish ministers pushed ahead with the Bill against the advice of Presiding Officer Ken Macintosh, who said he believed the Bill was outside Holyrood's remit after taking legal advice.

The Lord Advocate said then: "The Scottish Government has been clear that its preferred position is a single piece of United Kingdom legislation to which the Scottish Parliament could consent: that remains the position".

The legislation was fast-tracked through the Scottish Parliament on a shortened timetable.

The Government is already facing a battle to pass the EU Withdrawal Bill through Westminster's Parliament, with the House of Lords likely to try and amend the legislation in a series of votes this week.

"Ministers will continue to be subject to legal requirements to transpose, implement and otherwise abide by European Union law so long as the United Kingdom remains a member of the EU".

"If that is right and if contrary to the view of the Scottish Government this Bill is incompatible with European Union law then the same reasoning would apply equally to the UK Government's Bill".

Ministers in both Cardiff and Edinburgh have repeatedly branded the UK Government's EU Withdrawal Bill a "power grab" which threatens devolution.

Ongoing talks between Westminster and the devolved governments have yet to overcome the impasse over the EU Withdrawal Bill, although Mr Wright expressed hope the discussions could yet achieve a breakthrough and avoid the Supreme Court's involvement.

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