By Jamie McNish, Trainee Solicitor

The Scottish Government has put forward its own Bill, addressing the retention of European Union (EU) law as it applies to devolved issues.

The Scottish EU Continuity Bill

The Scottish Bill has been put forward due to the row over how powers currently exercised at EU level, but which cover matters devolved to the Scottish Parliament, are divided post-exit. The European Union (Withdrawal) Bill, which is currently going through the UK Parliament provides that these powers will fall to Westminster, with the possibility of transfer to Scotland, Wales, and Northern Ireland at a later stage. The Scottish Government argues that these powers – including areas such as Agriculture and Fisheries – are properly the purview of the Scottish Parliament. They are, as a result, threatening not to consent to the UK Bill unless this is amended.

If consent was indeed withheld, and the UK Bill passed in an amended form, which removed its application to matters in devolved areas (which is not a given in the event that consent is withheld – the UK Parliament has sovereignty and the ability to push through legislation applying to Scotland, notwithstanding a lack of consent from the Scottish Parliament) then this would leave a gap where EU law covering devolved matters no longer had legal effect. It is to prevent against this eventuality that the Scottish EU Continuity Bill has been drafted. It deals with the issue in a very similar manner to the UK Bill, and should achieve the same result – that being of little noticeable change in the laws which apply after the UK’s exit from the EU.

Whether or not the Scottish Bill is ultimately necessary will depend on whether agreement can be found as to devolved matters, and the final shape of the UK Bill.

Brexit: The road ahead

Neither the EU Continuity Bill nor the European Union (Withdrawal) Bill have yet become law, and while the Scottish Bill is further down the process to adoption, its legality has been questioned, leaving it open to challenge. The Westminster Bill is still making its way through parliamentary process, and such is the level of debate it has generated, it is likely that it may emerge looking slightly different to its present composition.

The goal of both pieces of legislation is clear – to allow for those impacted by current EU law to carry on post-exit day without noticeable disruption. It isn’t clear that this will happen without qualification. In particular, a lack of clarity on which if any regulators will replace their current EU counterparts requires resolving but it can be hoped that any fears of a legislative black hole appearing immediately post-exit will be assuaged.