Continuity Bill update

New legislation will be brought forward to enable devolved laws to keep pace with the EU if Brexit occurs, Constitutional Relations Secretary Michael Russell has said.

Mr Russell has written to the Scottish Parliament’s Presiding Officer after cross-party discussions about the implications of last year’s Supreme Court judgment on the Continuity Bill. It found that MSPs had been entitled to prepare Scotland’s laws for Brexit at the time but the UK Government had retrospectively limited Holyrood’s options, without its consent.

In the letter, the Constitutional Relations Secretary confirmed that Scottish Ministers have ‘reluctantly’ decided not to move for reconsideration of the Continuity Bill. Instead, the Scottish Government will ensure the choices made by the Scottish Parliament are respected by:

• bringing forward new legislation to ensure Scots law continues to align with EU law
• strengthening environmental protection, including seeking opportunities to legislate
• looking at how best to safeguard important EU human rights values
• agreeing new protocols with the Scottish Parliament, which are now in place, to give MSPs more scrutiny over Brexit legislation

Full text of the letter:

THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL

The Supreme Court’s decision in the reference by the UK Law officers of the Continuity Bill has profound implications for the devolution settlements of these islands. The Court held that when the Scottish Parliament passed the Continuity Bill it had the power to decide what should be done, in devolved Scots law, to protect our system of laws from the damaging consequences of EU exit. That power was circumscribed by a later Act of the UK Parliament. In other words, the Scottish Parliament had the power to make different choices, such as the decision to retain the Charter of Fundamental Rights where the UK Government decided not to, but that power was removed by the UK Government’s EU (Withdrawal) Act, an Act passed without the consent of the Scottish Parliament.

As Lord Reed, Deputy President of the Supreme Court, observed in a recent speech given in Dover House: “the consequence is that it is legally possible for the UK Government to react to the passage of a Bill in the Scottish Parliament by making a reference and then persuading the UK Parliament to amend the Scotland Act so as to render the Bill invalid.” This is a significant development, and one which Government and Parliament will want to reflect on.

That being the case—the Continuity Bill having been in part retrospectively denuded of its force—Scottish Ministers have reluctantly come to the conclusion that we should not at this point move for its reconsideration. This decision has been taken following a series of meetings with representatives of parties across the Chamber.

However we are determined to respect the choices the Scottish Parliament made when passing the Continuity Bill to the maximum extent possible and I would like to set out how we intend to do so.

The Scottish Parliament voted for greater involvement in decisions to agree UK-wide statutory instruments and it voted for enhanced scrutiny of SSIs made by Scottish Ministers, including the provision of information about, for example, workers’ rights. The Bill contained a system allowing the sifting and upgrading of EU exit-related SSIs by the Scottish Parliament. All of this has already been achieved through protocols agreed between Government and Parliament.

The Bill required the Government to consult on environmental principles and governance. A consultation on maintaining the role of environmental principles in developing future Scottish environmental policy and legislation and maintaining effective, appropriate and proportionate environmental governance in Scotland was issued last month and closes on 11 May 2019.

Following this consultation, we shall continue to develop our policy for future environmental principles and governance in Scotland. We shall put in place the legislative and institutional arrangements that will be required. We shall look for opportunities to legislate, taking account of the results of the current consultation exercise and any further consultation that is needed. If arrangements are required during a transition period, or under an exit without a withdrawal agreement, we shall design interim arrangements that reflect our policy established through this consultation.

We can further confirm that we are actively considering the most effective ways to realise a commitment to have regard to the welfare needs of sentient animals in Scottish Government policy development before the end of this Parliament.

As outlined earlier, the Bill would have retained the Charter of Fundamental Rights. Doing so in the way envisaged by the Bill is no longer possible, due to the changes made to the competence of the Parliament by the European Union (Withdrawal) Act after the passage of the Bill, but the Government remains commited to the choice the Scottish Parliament made. The best way to enshrine respect for the important values reflected in the Charter in Scots law will be considered as part of the Government’s response to the report of the First Minister’s Advisory Group on Human Rights Leadership. A National Task Force is being established to take that work forward.

Finally, I can confirm the Government’s intention to bring back the provisions on keeping pace with EU law in new legislation. The extent to which devolved law aligns itself with the law of the EU should be a decision for the Scottish Parliament to take, not the UK Government. This Government is committed to no regression in standards or protections should EU exit take place, and the replacement of regulatory powers lost in consequence of EU exit will be essential to ensure that.

Parliament is now approaching the end of the programme of secondary legislation required for exit day to keep Scots law functioning after EU exit. This was an unwelcome but necessary task, and it was discharged by Parliament with rigour. This process would have been better suited to our country and its Parliament had it been underpinned by the Continuity Bill that was backed by a majority of the Parliament; but this intention was frustrated by the UK Government. We must therefore move forward, though exactly how we do that is still not clear owing to the chaos that continues to surround the UK Government’s handling of the EU exit process.

I would, of course, be happy to meet with you to discuss this further and answer questions in any parliamentary setting.

I am copying this letter to the Conveners of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee, and to the leaders of the parties in Parliament.

MICHAEL RUSSELL MSP