Leaving the EU: Scotland and Wales Continuity Bills

Joanna Cherry Excerpts

Wednesday 18th April 2018 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

(Urgent Question): To ask the Attorney General if he will make a statement on the Government’s position on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the Law Derived from the European Union (Wales) Bill.

[The Attorney General (Jeremy Wright)]

The continuity Bills—that is, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the Law Derived from the European Union (Wales) Bill—passed, as the hon. and learned Lady knows, through the Scottish Parliament and the Welsh Assembly on 21 March. As she also knows, the Scotland Act 1998 and the Government of Wales Act 2006 provide the Law Officers with the power to refer to the Supreme Court the question whether devolved legislation falls within legislative competence. That power enables us to fulfil our constitutional roles in upholding the rule of law and monitoring the boundaries of the devolved settlements in the interests of legal certainty.

The continuity Bills raise serious questions about legislative competence that need to be explored. That is apparent from the view of the Scottish Presiding Officer at introduction that the Scottish Bill was not within the legal scope of the Parliament, and the recognition of the Presiding Officer of the Welsh Assembly that the assessment of competence in relation to the Welsh Bill was not a “straightforward” decision,

“as it was recognised that there are significant arguments both for and against legislative competence existing for this Bill.”

The key purpose of the European Union (Withdrawal) Bill before this Parliament is to provide certainty across the UK on day one after exit from the EU, and the Scottish and Welsh continuity Bills would frustrate that objective. If the continuity Bills were to become law, there would be impacts not just on the Governments and legislatures but on the widespread understanding of and confidence in UK law after exit. The UK Government and the Scottish and Welsh Governments therefore agree that the best place for the provisions to ensure legal certainty after exiting the EU is in the EU (Withdrawal) Bill, and we are working hard across Governments to reach an agreement on how that might best be achieved.

However, the four-week statutory limit for making a reference closed yesterday, and an agreement has yet to be struck, so the Law Officers have made references to the Supreme Court in relation to both Bills, as a protective step in the public interest towards upholding legal certainty. This is therefore now a matter for the Supreme Court to determine. However, I remain hopeful that the ongoing negotiations with the devolved Administrations will result in an agreement. It is clear that that would be the best outcome for all involved. Should an acceptable agreement be reached and should the Scottish and Welsh continuity Bills consequently not take effect, the UK Government would seek to withdraw the references.

[Joanna Cherry]

I thank the Attorney General for his answer. These combined challenges are unprecedented in the 20-year history of devolution. Indeed, it is the first time that the UK Government have challenged legislation passed by the Scottish Parliament.

The Scottish Parliament’s Bill was passed by an overwhelming majority of 95 votes to 32. Only the Tories and one Liberal Democrat did not support the Bill. The rest of the Parliament—the Scottish National party, the Labour party, the Greens and the rest of the Lib Dems—supported the Bill. Scottish Ministers are satisfied that the Bill is within the legislative competence of the Scottish Parliament. In that view, they have the support of Scotland’s most senior Law Officer, the Lord Advocate.

The purpose of the Bill passed by the Scottish Parliament is to prepare for the consequences for devolved powers of UK withdrawal, and it is designed to work with the Westminster EU (Withdrawal) Bill. Can the Attorney General tell the House why this Tory Government are seeking to defeat a Bill in the courts that they could not defeat by democratic means in the Scottish Parliament? Does he agree that working with the Scottish Government and Parliament to resolve those political differences is preferable to resorting to law? Does he appreciate that this will widely be seen as an attack on the Scottish Parliament and the democratic legitimacy of the devolved settlement? Finally, how much will this cost and who will meet the legal costs?

[The Attorney General]

I agree with the hon. and learned Lady that the situation is unprecedented. She is right that no reference to the Supreme Court about Scottish legislation has previously been brought. However, she will recognise that that is not the only unprecedented factor here. As she knows, it is also the first time the Scottish Parliament has been prepared to proceed in the face of the advice of its Presiding Officer that the Bill is not within its competence. History is being made in more than one way.

I recognise that, as the hon. and learned Lady said, the Lord Advocate is of the view that the Bill is within competence, and I am heartened by her confidence in the unassailable wisdom of Law Officers, but she will recognise that his is not the only view and that legitimate questions have arisen about the Scottish Parliament’s competence to pass the legislation. Law Officers in the United Kingdom, in accordance with our powers under the devolution settlement, are seeking to refer those questions.

The hon. and learned Lady says that the continuity Bills mirror the European Union (Withdrawal) Bill, but she will recognise that there are significant differences between them. Those differences create the difficulty about legal certainty. We cannot have two versions of rules operating at the same time. That needs to be resolved.

Finally, the hon. and learned Lady said that we are seeking to defeat a Bill in the courts that we could not defeat in the Scottish Parliament. I gently point out that a substantial part of the Bill that was certainly passed in the Scottish Parliament was a rerun of amendments that she sought and failed to get passed in this House. As I said, there is more than one way of looking at the position. I hope that she and her colleagues would accept that there is a legitimate dispute, at least about competence, and that it is in accordance with the devolution settlement that the Supreme Court resolves it, unless we can do so by negotiation. I fervently hope that that is the case, because I agree with her that that would be a far better way forward.