Academic: Holyrood and Westminster facing Brexit court battle

The Scottish Government’s plans for its own Brexit laws at Holyrood could face a legal challenge from UK ministers, a leading academic has warned.

Work is already under way on a stand-alone Scottish EU Continuity Bill to prepare Scotland’s laws for Brexit after the proposed UK government legislation was branded a “power grab”.

But Professor Sionaidh Douglas-Scott of Queen Mary University in London has warned that there is a “precedent of sorts” to challenge the move in court after similar challenges were mounted against the Welsh Assembly.

“Any continuity bill might well face a legal challenge,” the academic states in a blog for the Scottish Parliament Information Centre.

“The Scottish Government is likely to argue that continuity legislation related only to devolved powers and that it was acting within competence. However, the UK government might disagree and challenge the legislation in court.”

Any legal battle would end up in the UK Supreme Court and would likely take place in the four-week window between MSPs passing the legislation at Holyrood and it gaining Royal Assent to become law.

There has never been a challenge to legislation passed at Holyrood in the Supreme Court in the two decades of devolution, but the Welsh Assembly has faced such challenges and was successful in one battle over agricultural legislation. “They do set a precedent of sorts,” the academic added.

The UK government has indicated that it will make changes to the EU Withdrawal Bill in order to satisfy the concerns at Holyrood of a power grab. The current legislation would see all powers being repatriated from Brussels after Brexit going directly to Westminster. But this would include many controls over areas like fishing and agriculture which should fall within the remit of the Scottish Parliament, in line with the Scotland Act which brought about devolution.

The Scottish Government has indicated it would withold consent at Holyrood for the EU Withdrawl Bill being drawn up at Westminster over the “power grab” fears.

A spokeswoman said last night: “That has left us with no alternative but to plan, in the form of a Continuity Bill, for the Scottish Parliament deciding not to give legislative consent to the EU Withdrawal Bill if the necessary amendments to protect devolution are not made.”

A UK government spokesman said: “Our full focus is on improving Clause 11 of the Withdrawal Bill by continuing the constructive talks with the Scottish Government and bringing forward changes in the Lords which can command support on all sides.”