Publishing legal advice on Scottish Brexit bill '˜would be dangerous precedent'
With the Scottish Government and the Scottish Parliament having opposing views over whether the bill is within Holyrood’s legislative competence, the Law Society has called for both Lord Advocate James Wolffe QC and Presiding Officer Ken Macintosh to publish their legal advice.
Michael Clancy, director of law reform at the Law Society of Scotland, said while it was highly unusual for such advice to be made public, the country was facing “extraordinary circumstances”.
Brexit has prompted a fierce dispute between the Scottish and UK governments over where devolved powers should be held once they are returned from Westminster.
With SNP ministers at Holyrood having branded the UK Government’s EU Withdrawal Bill a “power grab”, they have published their own version of the legislation.
The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is being rushed through the Scottish Parliament despite Mr Macintosh ruling it to be outside of Holyrood’s legislative competence.
With the Presiding Officer and Lord Advocate having issued conflicting statements on whether the bill is competent, Labour’s James Kelly said MSPs had been left in a “difficult position”.
He asked Mr Russell, who was appearing before Holyrood’s Finance and Constitution Committee, if he would “take on board the view of the Law Society that given the public interest here there is a case for both the Presiding Officer and the Lord Advocate publishing legal advice to inform these discussions”.
Mr Russell told him: “We have already undertaken an exceptional statement, permitted under the ministerial code, in which the Lord Advocate has indicated the reasons the Government has taken the action it has by saying why we believe this was in competence.
“He has also gone further, he has come to the chamber and he has answered questions from members on these matters, and that is an exceptional step to take.
“It is not the view of the government that we should then move into not only completely uncharted waters, but waters that would set, we think, a very difficult and dangerous precedent, if we were then to publish or give further legal advice, so that is not the intention so to do.
“We have indicated very clearly in publications, in statements, why the Scottish Government believes this is competent and we have given legal reasons for that.”
He also said the Presiding Officer had “published a lengthier statement than I believe he has ever published before” on the matter.
Mr Clancy said: “Our view in asking for both the Presiding Officer and the Lord Advocate to explain their thinking is based on the idea that there should be an element of transparency about this question and we should be able to see the rationale which led to the two statements.
“I know it is an extraordinary set of circumstances when law officers would do that, provide their advice, but these are extraordinary circumstances.”
His view was backed by Alan Page, professor of public law at Dundee University, who said: “I think it is entirely within the legitimate expectations of members of this Parliament that they should have a full view of the basis on which the different views have been taken.”