The constitutional stand-off between Holyrood and Westminster over Brexit escalated last night after the Scottish Government forged ahead with its own EU Withdrawal Bill - despite being told it is beyond the Scottish Parliament’s powers.
In an unprecedented move, Scotland’s Brexit minister Mike Russell insisted that the Scottish Government would forge ahead with its own legal framework after Holyrood’s Presiding Officer Ken Macintosh judged it was outwith Holyrood’s competence.
And it could result in a court battle between the Scottish and UK Government over a Brexit “powers grab” after Mr Russell hinted that SNP ministers are ready to fight any legal challenge from Westminster.
Nicola Sturgeon warned yesterday it is now “very likely” that the Holyrood would reject Westminster’s EU Withdrawal Bill when it comes before MSPs as a legislative consent motion (LCM).
The Scottish Government is now to accelerate its Withdrawal from the European Union (legal Continuity) Bill on an emergency basis which would see it formally passed by MSPs at the end of next month.
Mr Russell said the Scottish Government is endeavouring to protect the devolution settlement.
He said: “This is the first time since the reconvening of the Scottish Parliament in 1999 that the government has introduced a bill and the Presiding Officer has not been satisfied as to the legislative competence.
“We recognise that, we are mindful of what a serious moment it is.”
It emerged last night that Scotland’s top law officer, Lord Advocate Lord Wolffe, had judged that the proposed Scottish Government legislation was within Holyrood’s powers, in clash with Holyrood lawyers.
Mr Russell told MSPs that Scottish ministers “respectfully disagree” with Holyrood bosses and would be forging ahead.
“Scottish ministers are satisfied that it is within the powers of the Parliament to prepare for the devolved legislative consequences of the decision by the UK to leave the EU.
“We do not agree with the Presiding Officers view that it is incompatible with EU law to legislate in anticipation of what is to happen when EU law no longer applies.”
He added: “I can confirm that the Lord Advocate is satisfied that the Bill is within the legislative competence of the Parliament.”
The Scottish Parliament’s judgement that the Bill is not competent last night stood in contrast to the Welsh Assembly where lawyers there ruled that its own Brexit Bill was legally competent.
The SNP are fearful that the current UK Government’s current plan to withdraw from the EU represent a “power grab” on the devolution settlement. It is claimed that more than 20 key powers being repatriated from Brussels, which belong at Holyrood, are to be held at Westminster. This includes responsibility over key areas like farming and fishing.
Last night ditch talks between Nicola Sturgeon are now being earmarked to resolve the impasse at a plenary meeting of the Joint Ministerial Council next month.
The legislation is likely to win Parliamentary approval at Holyrood with the Greens already backing the move, while Labour and the Liberal Democrats could also be supportive.
But it could end up in court. Three of the UK’s most senior law officers still have 28 days to refer it to the Supreme Court after MSPs pass the legislation at Holyrood. Lord Wolffe, is unlikely to do so having judged it competent, but the current Advocate General Lord Keene, an ex-Scottish Tory party chairman, as well as the Attorney General Jeremy Wright, a sitting Tory MP, could take a different view. If the Supreme Court finds against the legislation, it would fall.
Mr Macintosh referred to last year’s case brought by Gina Miller at the Supreme Court to enforce a Commons vote on Brexit, which found that the Scottish Parliament could not block Brexit.
Mr Macintosh said: “In my view the Scotland Act provides that the legislative competence of the Parliament is to be assessed at the point at which legislation is passed. The Parliament and the Scottish Ministers will remain bound to act compatibly with EU law until such point as the Treaties cease to apply.
“In my view this prevents the Parliament from exercising legislative power now, even though it assumes it will be legally able to act in the future.”
Scottish Secretary David Mundell said he is still confident that Scottish and UK ministers can strike a deal to resolve the row over powers being returned after Brexit.
He said: “The Scottish Government has said that its preferred option is to work with the UK Government to agree an amendment to the EU (Withdrawal) Bill, and I welcome Mr Russell’s restatement of that today. We will continue to discuss this with them, and are focused on achieving agreement. We have been clear that we will protect and enhance the devolution settlement as we leave the EU, and that there will be a significant increase in Holyrood’s decision-making powers. But it is crucial we protect the UK’s valuable common market, and to do so we will need common approaches across the UK in some areas. We have made a considerable offer to the devolved administrations on amending the EU (Withdrawal) Bill, and look forward to further constructive talks.”