supreme court

The Scottish Continuity Bill Reference

Published: 18 December 2018
Author: Aileen McHarg

Last week’s decision by the Supreme Court in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill reference demonstrates both the strength and the weakness of Holyrood as a legislature.

The Background to the Case

The Continuity Bill was passed by the Scottish Parliament (alongside a similar Welsh Bill) in the context of the dispute between the Scottish and Welsh Governments, on the one hand, and the UK Government, on the other hand, over those aspects of what is now the European Union (Withdrawal) Act 2018 which affect devolved competence.  Unhappy with the way in which the then Withdrawal Bill dealt with the repatriation of decision-making powers from the EU, both devolved governments indicated that they would recommend that their respective legislatures withhold consent to the Bill (required under the Sewel Convention).  On the assumption that refusal of consent would mean that the Withdrawal Bill would be amended so as not to apply to devolved matters in Scotland or Wales, this would have left a legal lacuna that the Scottish and Welsh Continuity Bills were intended to fill.  They did so by providing for EU law to remain in effect in relation to devolved matters after exit day (retained (devolved) EU law), and by giving devolved ministers powers to adjust the devolved statute books to deal with deficiencies arising from Brexit, largely – but not entirely – mirroring the provisions of the Withdrawal Bill itself. 

Nevertheless, the primary purpose of the devolved Continuity Bills was political rather than legal.  Recognising the additional complexity that would arise from having different statutory regimes governing the future status of EU law in relation to devolved and reserved matters, the Scottish and Welsh Governments stated that if the Withdrawal Bill was sufficiently amended to enable devolved consent to be granted, their own Bills would be withdrawn or repealed (as indeed later occurred in relation to the Welsh Bill).  In addition, it was clear that the UK and devolved governments were engaged in a race to the statute book.  The Withdrawal Bill contained a provision amending the devolution statutes so that it would itself become a protected statute which the devolved legislatures would be unable to modify.  For that reason, the devolved Continuity Bills were – controversially – passed as emergency legislation.  The Scottish Bill completed Stage 3 on 21 March 2018, just over three weeks after it was introduced.

The legality of the Scottish Continuity Bill was also controversial from the outset.  For the first time since 1999, the Presiding Officer disagreed with the Scottish Government that the Bill was within the Scottish Parliament’s legislative competence, although his opinion did not prevent the Bill being passed.  In another Scottish first, the UK Government’s Law Officers then exercised their power to refer the Bill to the Supreme Court for a ruling on its competence.  The effect of that reference was to prevent the Bill being sent for Royal Assent.  This was crucially important.  On 2 May, the Withdrawal Bill was amended so that the provision making it a protected statute would come into effect on Royal Assent.  Royal Assent was duly granted on 26 June and - despite the Scottish Parliament’s continued refusal to consent – the Act was applied to devolved matters in Scotland.  Again, this was the first time the UK Parliament has legislated in relation to something that it has clearly accepted relates to devolved matters in the absence of devolved consent.

The Supreme Court’s Decision

The Supreme Court’s decision falls into two parts: first, considering the competence of the Continuity Bill at the date it was passed; second, considering its competence if Royal Assent were to be granted now.

The Initial Competence of the Bill

The UK Government’s law officers presented a wholesale attack on the competence of the Bill ab initio, going well beyond the objections raised by the Presiding Officer.  These included arguments that it encroached on the reserved matters of international relations and the UK Parliament; that it modified the Scotland Act 1998 as a protected statute; that it was in breach of EU law; and that it was contrary to the Rule of Law on grounds of legal uncertainty.  Both the breadth and the terms of the arguments made by the law officers were alarming, suggesting a view of the scope of devolved competence significantly at odds with established case law, and which would have had major implications for the ability of the devolved legislatures to influence future Brexit legislation via the Sewel Convention. 

With the exception of one section, this general attack on the competence of the Bill was comprehensively rejected by the Supreme Court. The Court took the opportunity to reaffirm the breadth of Holyrood’s legislative competence, subject only to the specific limitations expressly specified in the Scotland Act.  It also underlined the important distinction between the reserved matters listed in Schedule 5 and the protected statutes included in Schedule 4.  Whereas the former occupy the entire policy field in question, the latter do not; this means that Holyrood may legislate in the same policy fields provided that its legislation supplements and is not inconsistent with the protected UK legislation.  The Court further confirmed the Scottish Parliament’s competence to legislate to implement EU law and other international treaties.  And it described as ‘misconceived’ the argument that it is contrary to the Rule of Law or legally uncertain for the UK and Scottish Parliament to legislate on the same matters, provided that the legislation does not conflict. 

The exception was section 17, which would have made secondary legislation made by UK Ministers under UK legislation passed after the enactment of the Continuity Bill, and affecting retained (devolved) EU law, subject to the consent of the Scottish Ministers.  This was an attempt to address the fact that secondary legislation is not subject to the Sewel Convention.  Again, the Supreme Court rejected a number of attacks on this provision, including the argument that, having failed to persuade the UK Parliament to amend the Withdrawal Bill to this effect, it was unlawful for the Scottish Parliament to seek to secure the same objective with its own legislation.  However, the Court did accept the novel argument that section 17 amounted to an unlawful modification of section 28(7) of the Scotland Act 1998, which is itself a protected statute within Schedule 4.  Section 28(7) states that the establishment of the Scottish Parliament ‘does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’ – a provision hitherto thought to be merely declaratory of Westminster’s continued sovereignty.  While the Supreme Court held that section 17 did not affect sovereignty, because it could have been overridden or repealed by Westminster, it was nevertheless inconsistent with section 28(7) because it sought to condition the future exercise of Westminster’s legislative power.  Subject to any other restrictions on its competence, though, there would be nothing to stop Holyrood legislating after the event to make UK Ministerial powers affecting devolved matters subject to Scottish Government consent, just as it could amend them in other ways, or even repeal them altogether.

Competence after the Enactment of the Withdrawal Act

At the time the Bill was passed, then, the Supreme Court’s decision confirms that it was largely within Holyrood’s competence.  However, the post-reference enactment of the Withdrawal Act changed matters considerably.  Although, the Lord Advocate argued that legislative competence should be judged at the time a Bill was passed, the Supreme Court held, unsurprisingly, that it had to be judged at the point of enactment – i.e. when it received Royal Assent.  As the Lord Advocate conceded, this meant that large parts of the Bill had become ultra vires to the extent that they were inconsistent with the equivalent provisions in the Withdrawal Act.  Notably, this included the attempt to give continued effect in domestic law to the European Charter of Fundamental Rights, which is expressly excluded by the Withdrawal Act, and the power in section 11 for the Scottish Ministers to modify the Scottish statute book to deal with deficiencies caused by Brexit, which is different in scope to the equivalent power in the Withdrawal Act.  What remains of the Bill are those parts which are identical to the Withdrawal Act, or which clearly supplement it.  The latter include ministerial powers to rectify breaches of international obligations consequent upon Brexit and to implement post-Brexit developments in EU law, as well as a duty to draw up guidance on how environmental principles are to be taken into account by the Scottish Ministers and other Scottish public authorities.

What Happens Next?

Following a Supreme Court reference, a Bill may not be presented for Royal Assent until any provisions falling outwith devolved competence have been removed or amended.  The Scottish Government must now decide whether there is anything to be gained from proceeding with the Continuity Bill, and it has undertaken to consult with other parties on this question. 

Given that the Bill was intended primarily to serve a political purpose, it might well be thought that subsequent events have rendered it politically – if not entirely legally – redundant.  On the other hand, the Scottish Ministers might consider that, although it has failed in its primary political goal, it has served another, more fundamental one.  After all, the Supreme Court’s decision reinforces the narrative that Withdrawal Act amounted to a ‘power grab’: the competence that Holyrood previously enjoyed to regulate the consequences of Brexit in relation to devolved matters was removed by the Withdrawal Act, and this was done without its consent.  The UK’s Government’s ability to halt the progress of the Continuity Bill by using its Supreme Court reference powers, and thereby to rig the race to the statute book decisively in its favour, further underlines the weakness of the devolved institutions within the current territorial constitution.  In choosing to press its tactical advantage, the UK Government may yet find that it has committed a(nother) strategic error in its handling of the devolved aspects of Brexit.

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