However before the Bill
proceedings began, the Presiding Officer, Ken Mackintosh, made a
statement that in his opinion the Bill does not fall within the legal competency of the Parliament. And while the Presiding Officer does have a duty to say if he considers a Bill incompetent he has quite possibly released a Brexit Cat amongst the Scottish Parliamentarian Pigeons. Because of this the Lord Advocate of Scotland came to the Chamber to give his legal opinion. The video is further down this post.
Why bring in a Scottish Bill? The gist of why it’s happening comes back to the UKGov’s current failure to alter their own EU Bill at Westminster to safeguard the basis of the devolved governments of Scotland & Wales. (Possibly of Northern Ireland too but unfortunately Stormont has not been sitting since last year when DUP and Sein Fein could not agree to work together.) As it stands, neither Holyrood nor Cardiff are prepared to give their consent to the Westminster Bill. In their view, the Westminster Bill contains a “power grab” taking matters which are currently devolved back into Westminster’s remit. So both places have started the introduction of their own Bills which will bring all current EU Law covering devolved matters over into Scottish and Welsh law respectively. EU Law covering matters currently retained by Westminster will be dealt with under the Westminster Bill.
Why now? Because it’s crucial that EU Law is transferred smoothly to Holyrood when UK leaves EU in March 2019 with no interruption of those Laws. If UKGov does not alter the Westminster Bill to Holyrood and Cardiff’s satisfaction then we run the risk of just such an interruption of legal continuity.. Both the Scottish and Welsh Bills prevent that possibility. But getting a Bill through takes time and if the process doesn’t start now it will be too late. If eventually UKGov alters the Westminster Bill in terms of the power grab section of it, then there will be no need for the Scottish and Welsh Bills and they will be revoked.
Why is the Lord Advocate involved? It’s normal practice to take legal advice before introducing any Bill that Holyrood is competent to deal with it. It needs to relate to something that is within Holyrood’s remit. The Lord Advocate (LA), James Wolff, was asked and gave his view on this Bill that it is within the legislative competence of Parliament.
What’s not normal is for him to come to the Chamber. This is unprecedented. He’s doing it because of the Presiding Officer’s very unexpected declaration. The Bill can still proceed but it is open to legal challenge by anyone so minded. We already know from the day before that Labour, Greens and LibDem MSPs support the bill. That only leaves the Scottish Conservative MSPs whose spokesman, Adam Tompkins, describes it as “unwelcome and unnecessary.” So it’s a fair bet that the Scottish Tories are probably going to be so minded to challenge it. But that’s for another day.
The video covers the Lord Advocate giving his considered opinion followed by questions deem MSPs. To make this easier to navigate through here are some times:
Lord Advocate’s Statement:
- 14.11 He lays out the basics of how legal competency is decided. He also confirms that he considers it is with legal competency of the Parliament.
- 14.15 Any Bill has to be compatible with EU Law. Presiding Officer has said that this Bill is not so compatible. LA explains why he considers this to be wrong and why the Bill is compatible with EU Law.
- 14.19 This Bill is modelled on UKGov Bill. If this Bill is not compatible, then neither is the Westminster Bill.
- 14.20 Nothing in this Bill comes into effect until we leave the EU. For this reason it is compatible and it is for this reason that the Welsh Presiding Officer has decided that it is compatible with EU and therefore that it falls within the legal competency of the Welsh Assembly
Questions from MSPs: