The Scottish Government is seeking to pass the European Union (Legal Continuity) (Scotland) Bill (the "Continuity Bill") in the Scottish Parliament as emergency legislation. 

The accelerated timetable, when compared to the much more extensive process being used for the EU Withdrawal Bill ("Withdrawal Bill") in the UK Parliament, may (at least in part) be intended to leave time to resolve the legal questions that have been raised in respect of the Bill before it has to be used in earnest.

The Scottish Parliament's power to make law is subject to some key restrictions, among them the rules that it cannot legislate incompatibly with EU law, nor legislate on matters which the UK Parliament has reserved to itself.

The relationship between these two limits underpins the Continuity Bill, which (among other things) authorises the Scottish Government to amend those elements of EU law that are to be retained in Scots law but which are not specifically reserved to Westminster. This would include modifying EU laws in areas such as agriculture, fisheries and the environment..

By contrast, the Withdrawal Bill would allow the Scottish Government to modify the law only in respect of those matters for which they are currently responsible (i.e. in which they could legislate now). This would mean the Scottish Government would be prevented not only from modifying pre-Brexit EU law as it relates to reserved areas but also from modifying many other elements of EU law.

For more on what the Continuity Bill and Withdrawal Bill are intended to do, see our previous post here.

Whether it is lawful for the Scottish Parliament to legislate in this way is the core of the disagreement between the Scottish Government and the Presiding Officer of the Scottish Parliament on the competence of the Continuity Bill. The Presiding Officer stated at the Continuity Bill's introduction that he did not believe it to be within the Scottish Parliament's legislative competence.

The Scotland Act 1998 requires both the person introducing a Bill and the Presiding Officer to state whether the Bill is, in their opinion, within the Parliament's competence. A statement from the Presiding Officer that he does not consider a Bill to be within competence does not block the Bill, so the Parliament can still pass it if it wishes. However, this is the first time that any Presiding Officer has said that a Scottish Government Bill would not be within the Parliament's competence. On two previous occasions (the Rail Passenger Services (Scotland) Bill and the Civil Appeals (Scotland) Bill) such an opinion has been given on a Member's Bill (i.e. a Bill introduced by an individual MSP), and on each occasion the Parliament decided not to progress the relevant Bill beyond Stage 1 of the legislative process.

What is the disagreement between the Presiding Officer and the Scottish Government?

The argument boils down to whether the Continuity Bill is incompatible with EU law. If so it would put it outside the Scottish Parliament's legislative competence, under section 29(2)(d) of the Scotland Act 1998.

The Presiding Officer does not specifically identify in his statement what provisions of the Continuity Bill he considers would be incompatible with EU law, but there are some obvious candidates: not only the power for the Scottish Ministers to amend EU law so that it makes sense after Brexit, as conferred by section 11, but also section 6 which provides that the principle of the supremacy of EU law, a key rule of EU law, will not apply to Acts of the Scottish Parliament once the UK leaves the EU. If section 6 came into force today, or orders were made pre-Brexit purporting to amend the terms of EU law, they would clearly be incompatible with EU law.

The Scottish Government obviously does not disagree that the Bill would be outside competence if it took effect pre-Brexit, as the Continuity Bill anticipates (and, in the Scottish Government's view, avoids) this problem through clause 1(2), which provides that:

"In so far as any provision of this Act, or any provision made under it, would, if it were in effect before the relevant time, be incompatible with EU law, the provision is to have no effect until the relevant time."

The "relevant time" is defined as the time at which the provision of EU law with which any part of the Continuity Bill (or an order made under it) would be incompatible ceases to have effect in Scots law as a consequence of UK withdrawal. The intention is therefore that, if a provision of the Continuity Bill would be unlawful because it breaches EU law, it would not come into effect until after the UK has left the EU and EU law no longer applies.

The Presiding Officer's view

The Presiding Officer disagrees with the Scottish Government on whether the Scottish Parliament can "make provision now for powers which it is possible the Parliament will acquire in the future" - i.e. as a result of the UK leaving the EU. He concludes that it cannot, taking the view that a Bill should be assessed by reference to the legislative competence of the Parliament at the time the Bill is passed rather than in anticipation of what the position might be in future. His view is that "legislation cannot seek to exercise competence prior to that competence being transferred ... postponing the exercise of powers until a future date may change the legal effect of a Bill but does not resolve the question of its legal validity."

If the Presiding Officer's view is correct then the Scottish Parliament cannot pre-empt the Withdrawal Bill as intended.

The Scottish Government's view

The Lord Advocate took the very unusual step of appearing before the Scottish Parliament on Wednesday 28 February to make a ministerial statement on the Continuity Bill, confirming his view that it is within the Parliament's powers.

The Lord Advocate argued that it is "plainly not incompatible" with EU law for the UK to prepare its laws for the "inevitable consequences" of its withdrawal from the EU, and that it is therefore similarly not incompatible for the Scottish Parliament to do so.

The Lord Advocate also argued that the restriction on the Scottish Parliament legislating incompatibly with EU law was intended to prevent the Scottish Parliament placing the UK in breach of its legal obligations to the EU. Once the UK leaves the EU, and those obligations fall away, there is no reason to believe that the UK Parliament would have intended the Scottish Parliament to continue to be bound by EU law. Until then, the argument runs, the Continuity Bill would not do anything to put the UK in breach of its obligations as the relevant parts would not take effect until EU law no longer applied.

The conflict between these two positions was further debated before the Scottish Parliament's Finance and Constitution Committee on Wednesday.

The view from Wales

It is also notable that the Presiding Officer of the Welsh Assembly (the "Llywydd"), Elin Jones AM, has taken the unusual step of publishing her opinion that the Welsh Government's equivalent Bill - the Law Derived from the European Union (Wales) Bill - is within the Welsh Assembly's competence. The constitutional settlement regarding which powers are devolved differs between Wales and Scotland, but the Welsh Assembly and Welsh Government are subject to the same rules regarding compliance with EU law.

The Llywydd noted three bases for her view that the Welsh Bill is within competence: first, and principally, the relevant powers would (as in the Continuity Bill) not come into effect until Brexit happens; second, Brexit will definitely happen; and third, at that point the requirement that devolved bodies comply with EU law will cease to apply.

The second factor seems to be where the Llywydd differs from the Presiding Officer. The Llywydd takes it as a matter of fact that Brexit will happen and that EU law will cease to apply. The Presiding Officer, by contrast, noted that the devolution settlement is presumed to "fluctuate over time" but that the Scottish Parliament cannot legislate on the basis that "it assumes it will be legally able to act in the future" - i.e. it cannot assume that Brexit will definitely happen and that the restriction on competence relating to EU law will cease to apply.

What next?

In the early days of the debate over the Scottish independence referendum we published a series of posts on the ways in which the competence of a Scottish Parliament Bill can be challenged in the courts: see here, here, here and here. Unless the UK and Scottish (and Welsh) Governments can reach agreement on the terms of the Withdrawal Bill, it seems likely that the Continuity Bill and its Welsh counterpart will be enacted. It also seems likely that, in that event, at least one of the Bills would be referred to the Supreme Court (by the UK Law Officers, unless the devolved officers took that step proactively).to rule on its competence. For more on what that process would involve, see Part 2 of our earlier series.