Supreme Court judges would rule Theresa May’s flagship Brexit legislation unlawful if they followed the logic of a decision on the SNP’s version, says the Lord Advocate.
A long-running feud over the destination of repatriated Brussels powers escalated when Scottish ministers brought forward its continuity bill on Tuesday, a rival to the Conservative legislation.
Michael Russell, Scotland’s Brexit Secretary, said the move is necessary because of the UK Government’s refusal to retreat from its “power grab” in the Westminster bill.
Presiding officer Ken Macintosh said Holyrood does not have the authority to legislate at this time on areas covered by EU legislation, a position the Scottish Government’s top lawyer James Wolffe disputes.
Mr Wolffe, who was updating MSPs on Wednesday, said: “It is not incompatible with EU law to make provision to deal with the inevitable consequences in domestic law of withdrawal from the EU, in this way.
“Indeed, that appears to be the basis upon which the UK Government’s own EU (Withdrawal) Bill, upon which this bill has been modelled, proceeds.
“If that is right, and, if contrary to the view of the Scottish Government, this bill is incompatible with EU law, then the same reasoning would equally apply to the UK Government’s bill.”
Both bills transfer EU laws onto domestic statute books on the day Britain leaves the bloc so there are no gaps in legislation.
The SNP says the UK bill seizes competences that are devolved, such as agriculture and fisheries, and so belong at Holyrood.
Ministers in London say a minority of the returning powers need to be run from Westminster, while UK-wide rules and regulations are drawn up to protect the British single market.
Mr Russell said they will proceed with the bill by asking MSPs to put it on an emergency timetable on Thursday.
But he added they would back down if the Tories remove its “power grab” from the Commons bill.