It is the first Bill to be introduced by the Government with a Statement from the Presiding Officer in terms of the Scotland Act 1998 indicating that in his view the Bill is not within the legislative competence of the Scottish Parliament. It is the first time that a Lord Advocate has made a statement on the competence of a Bill to the Parliament on the Bill's introduction. It is probably also a first that a Bill of this constitutional importance and impact is timetabled to go from introduction to being passed by the Scottish Parliament in less than a month. It is timetabled to be passed by the Scottish Parliament on 21 March 2018. So how did we get here?
When the Brexit result became known on 24 June 2016 the Scottish Government began to consider the implications of the decision for Scotland who had voted to remain. Their consistent position has been that Scotland should remain in the EU single market and customs union. The UK Government disagreed. The European Union (Notification of Withdrawal) Act 2017 and the European Union (Withdrawal) Bill followed. It was inevitable that provision would need to be made for devolved matters. Discussions have been proceeding between the UK Government and the devolved administrations slowly and fractiously for some time and have now reached a head. Cabinet Office issued a list of 111 areas of interaction between EU and devolved functions, and has now issued a paper setting out its thinking. In short, the UK Government has said that some of these devolved EU functions will go directly to the Scottish Parliament, while others will be dealt with on a UK basis to ensure the proper working of the UK single market. The Scottish Government say that all of these powers should come to the Scottish Parliament now, and it will then be for the UK and Scottish Governments to agree how and whether those powers should be used on a UK basis.
The European Union (Withdrawal) Bill, currently on it's way through the House of Lords, is the legislative manifestation of this problem. Will it be amended to clarify what powers are to come to Scotland to the satisfaction of the Scottish Government or not? An amendment to the Bill is expected next week.
In this political context, the Scottish Government are putting pressure on the UK Government with their new Legal Continuity Bill. This new Bill tries to cover all matters within the legislative competence of the Scottish Parliament that will be coming back from the EU. The Scottish Bill looks very like the UK Bill, but it has some important differences. It retains the Chapter of Fundamental Rights as a part of Scots Law, which is specifically excluded from the UK Bill. It allows the Scottish Government to ensure that Scots Law keeps pace with developments in EU law, an approach not adopted by the UK Government. It requires the UK Government to obtain the consent of the Scottish Parliament if it is legislating in devolved areas. This is very different from the existing Sewel Convention which seeks Scottish Government consent to certain UK primary legislation. Finally the Bill has a power to set the "exit day" for devolved matters, although setting a different day from that which applies to the reserved matters in the UK may be only theoretical.
These have been a couple of constitutionally important weeks in Scotland and the UK with the introduction of the Bill. It passed Stage 1 in the Scottish Parliament this week. It remains to be seen how this will impact on the Scottish/Welsh and UK negotiations, never mind the message it may be sending to the EU. Whatever happens in the Scottish Parliament, this Bill may very well be referred by the UK Law Officers directly to the Supreme Court in terms of the Scotland Act 1998. This has never happened before in Scotland. I suspect therefore that there may be one further "first" to come.