Back in February this year the Scottish Government published its own alternative to the UK Government’s EU Withdrawal Bill.
The Continuity Bill was designed to ensure devolved powers controlled by Brussels came back to Scotland after Brexit.
Brussells had control over areas that are devolved to the Scottish parliament. These powers ought to have returned automatically to Scotland.
Theresa May had initially promised no decision would be made unless all of the nations of the UK agreed. This pledge was soon trashed when it became clear Holyrood was not going to give its consent to powers it controlled automatically going to London the day after Brexit.
The day the Continuity Bill was published, it emerged Holyrood’s Presiding Officer had ruled it outwith the Scottish Parliament’s competence.
Ken Macintosh’s decision put him at odds with Scotland’s top law officer. Macintosh’s decision also handed a stick to Scotland’s Unionist media. This was a media that had sought to play down the issue of the Power Grab.
Instead of reporting on the reasons for the Continuity Bill, Macintosh’s decision allowed the British Nationalist media to portray it as an illegal stunt.
Scotland’s Lord Advocate was forced to come to the Holyrood chamber and explain why Macintosh was wrong. An unprecedented address brought on by what we now know was a poorly advised judgement by a Presiding Officer.
Yesterday the ruling from the UK Supreme Court revealed that the Lord Advocate was correct. At the time of the publication of the bill by the Scottish Government, it was competent … save for one small insignificant section.
We know now that the UK Government acted deviously in referring the matter to the Supreme Court. The delay allowed London to change the law. It granted its own Withdrawal Bill protected status and thus rendered key sections of the Continuity Bill incompetent.
We also know that the Lord Advocate complained about the actions of the UK Government but that he has never received an answer to his letter.
Ken Macintosh has some explaining to do. Why did he call into question the legal competence of Scotland’s top law officer? What advice was Macintosh privvy to that so led him to take the side of Westminster against Holyrood?
It has been opined that Macintosh’s decision was politically motivated. That he feared the Continuity Bill might lead to legislation on independence if it was allowed to pass. In February The Herald newspaper claimed just such a concern was indeed behind Macintosh’s ruling.
Convention has it that if the Presiding Officer says a bill is outwith the parliament’s competence then that is enough for it not to consider the bill. Macintosh’s decision would normally have led to the Continuity Bill dying there and then.
We can’t know whether the Presiding Officer sought to thwart competent legislation for political reasons or not. What we do know is that he was poorly advised. His flawed decision led to countless negative news reports about a very important piece of legislation that sought to protect the Scottish Parliament.
Macintosh is on record as saying he is a devolutionist. He ought to have sided with Scotland’s top law officer and Scotland’s parliament in protecting devolution. He didn’t. He stood with London against the parliament he is supposed to serve.
Ken Macintosh should acknowledge he picked the wrong side and step down as Presiding Officer.