Brexit legislation in the Supreme Court: A Tale of Two Withdrawal Acts?

Published: 17 December 2018
The Supreme Court's ruling on the Scottish Continuity Bill gave both sides something but acknowledged that the vast bulk of the Bill was within Holyrood's competence at the time it was passed however, suggests Sionaidh Douglas-Scott, the strong feeling that devolved interests are not taken seriously highlights underlying fractures within the Union. 
Judgement was delivered last Thursday by a unanimous UK Supreme Court on the legality of the Scottish Continuity Bill1  adopted by the Scottish Parliament in March 2018, and its compatibility with the UK EU Withdrawal Act (EUWA) which became law in June 2018. The Supreme Court found s17 of this Bill to be beyond the competence of the Scottish Parliament, and therefore unable to come into effect. 
Devolution has taken place within the framework of EU membership. To an extent not always appreciated, the EU has provided overarching legal and governance frameworks for areas such as agriculture and fisheries, which are devolved matters. Holyrood, while being responsible for devolved matters, was also bound by regulation from the EU in those areas, rather than London. After Brexit, this must change, as powers formally held by the EU are ‘repatriated’. 
However, the UK EU Withdrawal Bill, when first published in July 2017, brought those powers directly back to Westminster (under the general label of ‘retained EU law’). Both Scottish and Welsh First Ministers immediately attacked this as ‘a naked power grab.’ Under s12 EUWA, devolved authorities cannot stop UK Ministers from ultimately limiting their powers to amend retained EU law. This means the UK Government can unilaterally limit devolved powers in these areas.
This is why the Scottish Parliament refused to give its consent to the EUWA and additionally passed its own UK Withdrawal from the EU (Legal Continuity) (Scotland) Act 2018 by 95 to 32 votes in March 2018.  The Scottish Continuity Bill shared a structure and approach with the EUWA, seeking to complement it, but diverged from it in some areas. For example, it did not exclude the Charter of Fundamental Rights from ‘retained EU law’, and would allow Scotland to keep pace with EU developments in future. It also, in s 17, required the consent of Scottish ministers, should UK Ministers wish to alter or repeal retained EU law within devolved areas – a provision crucial to protecting Scotland’s interests but notably lacking in the EUWA.
The UK Government attacked the legal competence of Continuity Bill in the UK Supreme Court. Notably, this referral occurred before the EUWA had been adopted and become law at Westminster. Until judgement was given in this case, the Scottish Continuity Bill remained in limbo and could not come into force.
The UK Government’s case, presented by Lord Keen, was that, given that the EUWA had now become law, the Scottish Continuity Bill lay outside of the Scottish Parliament’s competence. Indeed, the EUWA itself is now incorporated into an amended Scotland Act 1998 as a ‘protected enactment’ that cannot be modified by devolved legislation, and much discussion in court concerned whether the Continuity Bill ‘modifies’ UK legislation. Lord Wolffe argued that the Scottish Parliament has competence to legislate regarding any matter not reserved to the UK and even if EU law ceases to apply in the UK, that does not affect this division of responsibility. EU powers should still return in line with the current division of powers under the devolution settlement. 
In a long and complex judgement, the essential holding is this: the Court did not find all of the Continuity Bill to be outside of Holyrood’s competence, only section 17. (Recall that s17 prohibits UK Ministers from regulating EU retained law on matters formerly within devolved competence, without consent of the Scottish government). The Court found s17  outside of the Scottish Parliament’s competence because it would modify both the Scotland Act 1998 and provisions in EUWA itself.   
In responding to the judgement, both sides seem to have claimed victory. Michael Russell MSP claimed ‘The Scottish government’s position has been vindicated by the Supreme Court judgment’ but that sections of the Continuity Bill had been ‘thwarted as a result of steps taken by the UK government’, retrospectively introducing powers in the EUWA. In contrast, UK Scottish Secretary, David Mundell, stated that ‘The Supreme Court has provided much-needed legal clarity that the Continuity Bill goes beyond the powers of the Scottish Parliament.’
However, the UK Government’s case is undermined by the judgement itself, which unanimously found ‘the whole of the Scottish bill would not be outside the legislative competence of the Scottish Parliament’, but, rather only s17, due to enactments in the EUWA. The obvious conclusion is that the Continuity Bill was largely competent when adopted by the Scottish Parliament in March. If so, surely it follows that the UK government may challenge any devolved legislation it dislikes, thus suspending its application while the matter is sub judice, and in the meantime adopt its own ‘protected legislation’, which by coming into force automatically trumps the devolved legislation? Does this not thoroughly undermine the devolution settlement? 
The Scottish Government must now decide how much of the Continuity Bill may be salvaged, if indeed any of it. The Supreme Court also considered other sections in the Bill that would be outside competence as a result of the impact of the enactment of the EUWA on s17. These included the Scottish attempt to maintain the Charter of Fundamental Rights in law. 
It is also striking that Westminster enacted the EUWA in spite of the Scottish Parliament’s refusal of legislative consent. Although such consent is not legally necessary, it is required by the ‘Sewel’ Convention. Indeed, the UK Parliament recently endorsed the Sewel convention in s2 Scotland Act 2016, although in Miller the UK Supreme Court held the Sewel convention not legally enforceable. The willingness of the UK Parliament to enact the EUWA without the Scottish Parliament’s consent provides an eye-catching illustration of Westminster Parliamentary (or perhaps UK Government?) sovereignty. However, ignoring such refusal may well have sober implications for the stability of the United Kingdom, and will not be forgotten quickly in Scotland.
The familiar phrase ‘disunited kingdom’ has been applied in the Brexit context. There is a strong feeling that devolved interests are not taken seriously in the Brexit process. Unlike federal states, devolved nations have no clear legal means of ensuring their different perspectives and needs. Brexit has brought such issues into focus, but provided no solutions. 
1  Terminology is confusing. The Continuity Bill was passed by the Scottish Parliament but could not come into force while challenged in the Supreme Court. I here follow the Supreme Court’s description of it as a ‘Bill’ not an ‘Act’.