23 January 2019
On 13 December 2018 the Supreme Court delivered its ruling on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”), which had been referred to it by the Attorney General and the Advocate-General for Scotland. The case was heard on the 24 and 25 July. The Counsel General and Northern Ireland Attorney General were also participants.
On 27 February 2018, the Scottish Government had introduced the Scottish Bill, to make provision for legal continuity following the UK’s withdrawal from the EU. The Scottish Bill was passed by the Scottish Parliament on 21 March 2018.
On 26 June 2018, the European Union (Withdrawal) Bill received Royal Assent and became the European Union Withdrawal Act 2018 (“the UK Withdrawal Act”). In other words, the UK Withdrawal Act became law after the Scottish Bill was passed but before it received Royal Assent.
The effect of the Supreme Court’s judgment is that the Scottish Bill cannot now receive Royal Assent in its current form. The Scottish Parliament has the option of amending it to bring it within competence.
What did the ruling say?
The Supreme Court gave a unanimous judgment. It found that the Scottish Bill was not, as a whole, outside the legislative competence of the Scottish Parliament. In fact, when the Bill was passed, it was wholly within competence, except for section 17, which was outside the legislative competence of the Parliament from the outset because it would have modified the Scotland Act 1998 in a way which that Act itself forbids. Section 17 prohibited the UK Government from making secondary legislation for Scotland in devolved areas affected by EU law, unless the Scottish Government consented. The Court held that this was an attempt to place conditions on the UK Parliament’s power to legislate for Scotland, as enshrined in the Scotland Act 1998, because that power includes the ability to allow UK Ministers to make secondary legislation for Scotland on any subject, without restriction.
The Court also ruled that a significant number of other sections would, at least in part, be outside the competence of the Scottish Parliament as a result of the UK Withdrawal Act, because they would modify provisions of that Act – something which is also now prohibited by Scotland Act.
One point the UK Government had argued was that the whole of the Scottish Bill was outside competence because it related to relations with the EU (a reserved matter). To relate to a reserved matter, a provision must have more than a loose or consequential connection with it. The Supreme Court concluded that “The Scottish Bill does not relate to relations with the EU. It simply regulates certain of the legal consequences of the cessation of EU law as a source of domestic law.”
Another argument raised against the Bill was that it made provision that would be incompatible with EU law as it stood. However, the Court ruled that this did not take the Bill outside competence, because those provisions would not come into effect until EU law had ceased to apply in Scotland.
On the day of the ruling the Lord Advocate, the Rt. Hon. James Wolffe QC, made a statement to the Scottish Parliament. He explained that the Supreme Court had had to address two issues. Firstly whether the Scottish Bill was within the competence of the Scottish Parliament when it passed the Bill. Secondly, whether the position had been affected by the changes that were made to the Scottish Parliament’s legislative competence, particularly by the UK Withdrawal Act. He said:
On the first issue, the Supreme Court has concluded that when this Parliament passed the continuity bill, the bill was, with the exception of section 17, within the competence of this Parliament. In reaching that conclusion, the court has confirmed the constitutional analysis that I and the other devolved law officers advanced in our submissions to the court. It has affirmed this Parliament’s power, subject to the limits on its competence, to prepare the statute book against the UK’s withdrawal from the European Union.
He pointed out that out that in regard to the second issue, “the court has rejected the submission by the UK Government’s law officers that the coming into force of the European Union (Withdrawal) Act 2018 means that the whole [Scottish] continuity bill is now outwith the competence of this Parliament.”
However, the Supreme Court had concluded that “the following provisions in the continuity bill would modify provisions in the withdrawal act and, for that reason, cannot now become law”. He concluded “Had the continuity bill become law before the withdrawal bill received royal assent, all those provisions would have survived.”
Implications for Wales
On 20 December 2018 the Counsel General designate, Jeremy Miles AM, issued a written statement about the judgement. He welcomed the Supreme Court’s “acceptance of the arguments advanced on behalf of both the Scottish and Welsh Governments regarding the scope of the international relations reservation” putting it beyond doubt “that legislating to regulate the domestic consequences of international agreements does not fall within the scope of that reservation.”
The Counsel General designate reiterated the Welsh Government’s position that the decision to bring forward the Law Derived from the European Union (Wales) Act was only ever a fall back option as its preferred course of action was for an EU (Withdrawal) Act which properly delivered for the whole of the UK. He argued:
Through the changes that were made to the EU (Withdrawal) Act and the accompanying intergovernmental agreement, we were able to secure the protection of devolution in Wales and make sure that laws and policy areas which are currently devolved remain devolved.
What happens next?
The Scottish Government must decide whether to amend the Scottish Bill and reintroduce it. Following the ruling Alison Atack, President of the Law Society of Scotland, said:
Today’s judgment means that the Scottish Government has a decision to make on whether to bring forward a revised bill.
With under four months to go until we are due to leave the EU, time is extremely limited. The Scottish Government will have to act quickly if it intends to bring forward a new bill which takes account of the points raised in the Supreme Court judgment and which will allow enough time for it to go through parliamentary processes and for proper scrutiny.
Commenting on the UK Constitutional Law Association blog, Christopher McCorkindale and Professor Aileen Harg of Strathclyde University said:
Although there might be a practical attraction in abandoning the Bill, and with it the complexities of co-existing schemes for Scotland and for the rest of the UK, there might be life in the Bill yet.
They point out that in his statement the Lord Advocate “stressed important provisions that remain intact: s12 (ministerial powers relating to compliance with the UK’s international obligations), s13 (ministerial powers that allow for Scotland to ‘keep pace’ with future developments in EU law post-Brexit) and s26A (a ministerial duty to prepare and consult on proposals concerning the protection of environmental principles)”.
Article by Alys Thomas, Senedd Research, National Assembly for Wales