SUMMARY

The Supreme Court has handed down its decision on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”), in a judgment which will have important implications for legislative powers returning from Brussels upon Brexit and for the UK’s devolution framework.

In preparation for the UK’s withdrawal from the EU, the UK Houses of Parliament passed the European Union (Withdrawal) Act 2018 (“the UK Withdrawal Act“) in order to repeal the European Communities Act 1972 (“the ECA“) and to achieve legal continuity within each of the jurisdictions of the UK. The Scottish Government had objected, amongst other things, to the UK Withdrawal Act’s allocation of areas of EU competence returning upon Brexit to the Westminster Parliament, as opposed to automatic devolution. On the other hand, Westminster emphasised its desire to ensure that legislative and policy divergence across the UK does not compromise stability and certainty and the operation of the UK’s internal market following Brexit.

Following the defeat of proposed amendments to the UK Withdrawal Act in its Bill form, which the Scottish Government had supported, the Scottish Government introduced the Scottish Bill to make its own provision for legal continuity post-Brexit and to seek to address its concerns with the UK Withdrawal Act. The Scottish Bill contained a range of measures to do so. These included section 17 of the bill, which provided that the legal effect of certain subordinate legislation made by Ministers in the UK Government after Brexit on matters of retained EU law would be conditional upon the consent of the Scottish Ministers.

Under section 33 of the Scotland Act 1998 (“the Scotland Act“), the Advocate General, the Lord Advocate or the Attorney General may refer for decision the question of whether a Bill would be within the legislative competence of the Scottish Parliament. Under this section, the Attorney General and the Advocate General for Scotland (“the UK Law Officers“) referred the Scottish Bill to the Supreme Court.

The Supreme Court unanimously held that the Scottish Bill, as a whole, would not be outside the legislative competence of the Scottish Parliament, as it does not relate to relations with the EU and is therefore not related to a reserved matter. The Supreme Court held, however, that Section 17 of the Scottish Bill would be outside the Scottish Parliament’s competence because it would be inconsistent with section 28(7) of the Scotland Act, which provides that the UK Parliament has unqualified legislative power in Scotland. The Supreme Court also held that other specific provisions of the Scottish Bill would be outside the Scottish Parliament’s competence because they would modify provisions of the UK Withdrawal Act.

JUDGMENT

The Supreme Court considered the matter within five sub-questions:

Is the Scottish Bill as a whole outside the legislative competence of the Scottish Parliament?

The Supreme Court emphasised that the only relevant question is whether the Scottish Bill relates to relations with the EU and therefore falls under section 29(2)(b) and thus out of the scope of the Scottish Parliament’s legislative competence.

The Supreme Court found that the Scottish Bill does not ‘relate to’ relations with the EU: it will take effect at a time when there will be no legal relations with the EU and regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters.

Is section 17 of the Scottish Bill outside the legislative competence of the Scottish Parliament?

The UK Law Officers argued that section 17 would modify section 28(7) of the Scotland Act, as it would impose a condition limiting the power of the UK Parliament to make laws for Scotland in relation to devolved matters. The Supreme Court agreed, finding that, in order for the sections to operate concurrently, section 17 would have to be treated as impliedly amending section 28(7) so that it is ‘subject to section 17 of the Scottish Bill’. This would be outside the Scottish Parliament’s competence since, under Schedule 4 of the Scotland Act, it does not have legislative competence to modify the Scotland Act, including by implicit amendment.

Are Section 33 of and Schedule 1 to the Scottish Bill outside the legislative competence of the Scottish Parliament?

Section 33 of the Scottish Bill purports to repeal spent references to EU law in the Scotland Act, and Schedule 1 provides for the repeal of provisions concerning EU parliamentary elections, references to the Court of Justice of the EU, obligations under EU law, and EU law. The Supreme Court found that neither section 33 of nor Schedule 1 to the Scottish Bill would be outside the Scottish Parliament’s legislative competence as the provisions which they would repeal will have become spent, and so they fall under an exception to the rule that the Scottish Parliament cannot modify the Scotland Act. Whilst the provisions to be repealed will not be spent until the UK’s withdrawal from the EU, section 33 of the Scottish Bill cannot be brought into force until the withdrawal, by which time they will be spent.

Are various provisions of the Scottish Bill outside competence because (i) they are incompatible with EU law, (ii) modify section 2(1) of the ECA, and/or (iii) are contrary to the rule of law?

The effect of sections 1(2)-(3) of the Scottish Bill is that none of the sections in questions can have legal effect until the provision of EU law with which it is incompatible have ceased to have effect as a consequence of the UK withdrawal. There is therefore no incompatibility with the EU law or modification of the ECA. The Supreme Court found that the challenge based on the rule of law was “misconceived”.

Can the Court consider the effect of the UK Withdrawal Act in the context of this reference?

The Supreme Court held that it is implicit in section 33 of the Scotland Act that the Court is required to consider whether the Scottish Bill would be within legislative competence if it were to receive Royal Assent at the time of its decision, so it could consider the effect of the UK Withdrawal Act.

What is the effect of the UK Withdrawal Act on the legislative competence of the Scottish Parliament in relation to the Scottish Bill?

Whilst the UK Withdrawal Act is not a reserved matter, it is protected against modifications. The Supreme Court identified a number of individual provisions which it was persuaded would amount to modifications and would therefore not be within legislative competence. For example, section 5 of the Scottish Bill would provide that the general principles of EU law and the Charter of Fundamental Rights (“the Charter“) would be part of Scottish law on or after exit day so far as they would have an effect in EU law immediately before exit day. However, the UK Withdrawal Act provides that the Charter is not part of domestic law on or after exit day and that there is to be no right of action based on a failure to comply with any general principles of EU law nor power to quash any enactment or conduct on the basis of incompatibility with any such principles.

COMMENT

This is the first time a section 33 of the Scotland Act challenge has been brought to the UK Supreme Court and the Scottish Bill is the first piece of legislation passed by the Scottish Parliament which its own Presiding Officer did not believe was within its legislative competence.

The judgment serves as a definitive reminder of the limits of the Scottish Parliament’s legislative competence: chiefly, the delimitations in the Scotland Act and the sovereignty of the UK Parliament. The questions raised have implications also for the other devolved legislatures of the UK, which is reflected by the appearance of the Counsel General to the Welsh Government and the Attorney General for Northern Ireland as interveners.

The reference was all the more interesting for its heavily political context. The Supreme Court acknowledged this, and emphasised that it is not the Court’s role to have any view on which institutions within the UK should best exercise in the public interest the legislative powers currently vested in EU institutions. The judgment was, therefore, focused on determining solely whether and to what extent, as a matter of law, the Scottish Bill would be within the legislative competence of the Scottish Parliament.

Nevertheless, the effect of the Supreme Court’s judgment is that the Westminster Parliament will have the final say on a number of returning devolved policy areas (subject to any agreement with the EU and agreements with the devolved governments). The judgment underscores heightened tensions between Westminster and Holyrood over the demarcation of returned powers post-Brexit.

Looking forward, Scottish Ministers are deciding whether to amend the Scottish Bill or whether to introduce fresh legislation; in the latter case, there is perhaps a risk that any new Bill would have its own new problems. Meanwhile, the UK Government has said it is willing to work with the Scottish Government to provide clarity for businesses and individuals in Scotland through an agreement on returning powers.