The UK government is challenging the legality of emergency Brexit bills passed by the Scottish and Welsh parliaments after months of dispute about their policy-making powers.

The attorney general, Jeremy Wright QC, and the advocate general for Scotland, Lord Keen, said on Tuesday they had applied to the supreme court for a ruling on whether the devolved parliaments have the constitutional authority to legislate for Brexit.

Wright said the application could be dropped if the UK and devolved governments agreed a deal on how to divide up or share up to 153 policy areas currently controlled by the EU in areas such as farm payments, fishing quotas, GM crops, air quality and organ transplants.

The Guardian revealed last month that the two law officers were expected to go to the supreme court as the Scottish and Welsh governments published emergency legislation on Brexit that sidestepped Westminster’s EU withdrawal bill.



Their bills, which were passed on a fast-track timetable by their respective legislatures, were tabled after the three governments failed to agree on how these EU powers would be shared between them after Brexit. Their talks are continuing.

The Scottish and Welsh administrations accuse the UK government of a power grab by seeking to centralise some of those powers in London, either temporarily or permanently, even though they are all managed by the devolved parliaments.

UK ministers deny the charge, insisting that 24 powers have to be shared and another 12 areas controlled at UK level to ensure consistent rules and to protect the UK’s internal market. They say that would mirror the EU’s system of ensuring consistency among member states.

There are already significant disputes over whether the Scottish and Welsh legislation goes beyond their constitutional powers.

Holyrood’s presiding officer, Ken Macintosh, ruled in February that the Scottish parliament did not have the authority to legislate on matters still controlled by another body, in this case the EU. Elin Jones, the Welsh assembly’s presiding officer, disagreed and said the assembly was able to do so on areas it already managed.

James Wolffe QC, the lord advocate and Scotland’s chief law officer, said he believed the measures were legal, in part because they could only be enacted after the UK had left the EU.

Wright said the UK government hoped to agree a deal before the case was heard by the supreme court. UK sources say the application to the court had to be submitted before the devolved legislation receives royal assent later this week.

“This legislation risks creating serious legal uncertainty for individuals and businesses as we leave the EU,” he said. “This reference is a protective measure which we are taking in the public interest. The [UK] government very much hopes this issue will be resolved without the need to continue with this litigation.”

Keen, who as advocate general is the UK government’s Scottish law officer, said: “By referring the Scottish parliament’s continuity bill to the supreme court, we are seeking legal certainty as to its competence.

“Given the presiding officer’s view at introduction that the bill was not within the legal scope of the [Scottish] parliament, we believe it is important to ask the court to provide absolute clarity. Particularly in the run-up to Brexit, it is vital that we avoid legal uncertainty in our statute book.”

Mike Russell, the Scottish government’s Brexit minister, said he also wanted to resolve the dispute through negotiation, but added that the lord advocate would defend Holyrood’s legislation if it went to court.

A Welsh government spokesman said it would also prefer to reach a political settlement.