Legal challenge to Continuity Bill ‘inevitable’ unless Scottish ministers take ‘Henry VIII suicide pill’

Professor Stephen Tiereny

Legislation passed yesterday intended to ensure repatriated powers from the EU go to Holyrood upon Brexit means a legal challenge is now “inevitable” unless Scottish ministers repeal the law, according to a constitutional expert.

Professor Stephen Tiereny, vice dean of Edinburgh Law School and legal adviser to the  House of Lords Constitution Committee, told Scottish Legal News that because the Presiding Officer and Lord Advocate disagree as to the competence of the bill “a legal challenge by UK law officers is surely inevitable if the self-destruct button contained within the bill itself is not activated”.

Under s.37 of the Continuity Bill, Scottish ministers can repeal the act under secondary legislation – what Professor Tierney (pictured) calls a “Henry VIII suicide pill”.

The academic also said that the bill’s legal purpose is “secondary to its political purpose” and that its ”rapid passage puts added pressure on the UK government to bring forward a reworked clause 11 to the European Union (Withdrawal) Bill, in a form that will satisfy the devolved administrations in Edinburgh and Cardiff”.

However the window of opportunity for a political deal is small.

He said: “The UK Parliament rises on 29 March until 16 April, after which the UK bill moves straight to report stage in the Lords before it goes back to the Commons for final amendment.

“At the same time law officers have only four weeks to decide whether to challenge the Continuity Bill’s legality.

“The question is whether the Continuity Bill, a headache the UK government could do without, provokes concessions on clause 11 that will see the bill’s repeal and possibly even Holyrood’s legislative consent to the UK Withdrawal Bill.”

And in the absence of agreement, Professor Tierney noted that the Supreme Court could be involved again “in yet another twist in the Brexit constitutional saga”.