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Continuity Bill: The Scottish Government’s alternative Brexit legislation

Why can the Continuity Bill still be introduced if Presiding Officer Ken Macintosh said it is outwith the parliament’s legislative competence?

The Scottish Government has published a Continuity Bill at Holyrood as an alternative to the UK Government’s EU Withdrawal Bill amid an ongoing dispute over how the Westminster legislation intersects with devolved competencies.

The Scottish Parliament’s presiding officer Ken Macintosh has said, in his opinion, the Continuity Bill is outwith the legislative competence of the parliament, despite his counterpart at the Welsh Assembly backing similar legislation there.

– Why has the presiding officer come to this conclusion?

In setting out his reasons, Mr Macintosh said the fundamental question was whether the Continuity Bill would be compatible with EU law when enacted, as required by the Scotland Act 1998.

He said the Continuity Bill “assumes that the Parliament can make provision now for the exercise of powers which it is possible the Parliament will acquire in the future”.

Mr Macintosh added: “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.”

– Is this the first time that this has happened at Holyrood?

Yes. No previous Scottish Government bill has received an opinion from the presiding officer that it was not within the legislative competence of the Parliament.

Previously, some Member’s bills have been deemed not to be competent, for example SNP MSP Sandra White’s Bill to ban parking on pavements in the last parliamentary session.

– Why can the Continuity Bill still be introduced?

A Bill can still be introduced even if it is thought not within legislative competence by the presiding officer.

The Parliament is responsible for considering whether or not to proceed with a Bill informed by the statements made by the presiding officer and the member who introduces it.

– Can a Bill be passed into law if it is not competent?

After completing its passage through parliament, Scottish Law Officers – the Lord Advocate, Advocate General or Attorney General – have 28 days to refer the bill to the Supreme Court if they consider it to be outwith the powers of the Scottish Parliament.

It would then be for the Supreme Court to determine whether or not the Bill is competent and only then could it proceed to Royal Assent if it were ruled competent. However even then it could still be challenged in the courts.

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