The UK Supreme Court has today ruled that the Royal Assent can be given to an amended UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill (the ‘Continuity Bill’). (This is one of the cases Tom Snelling trailed in his blog earlier this week.) The Continuity Bill will have to be debated further to remove the offending provisions before seeking Royal Assent.

What does the Continuity Bill contain?

The Continuity Bill came into being because of differences between the UK and Scottish governments over the EU (Withdrawal) Bill (the ‘UK Bill’). The main purpose of the UK Bill, which has now been enacted (the ‘UK Act’), is ‘to provide a functioning statute book on the day the UK leaves the EU’'. (The UK Act was passed without Scottish consent to the devolution provisions.) The Continuity Bill is said largely to mirror the UK Bill as the purpose was to seek consistency between the two instruments. However, there are differences. These include: (i) providing for the continued availability of the general principles of EU law from the EU treaties for a wider range of purposes than under the UK Bill; (ii) giving Scottish Ministers powers to make regulations to ensure that, where appropriate Scots law in devolved areas can continue to keep pace with EU law after the UK has left the EU; and (iii) requiring UK Ministers to obtain the consent of the Scottish Ministers for secondary legislation relating to devolved matters (section 17). The Continuity Bill was passed through an expedited process by the Scottish Parliament in March and is awaiting Royal Assent.

Was the Continuity Bill within the competence of the Scottish Parliament?

When the Continuity Bill was first published, the Scottish Parliament’s own Presiding Officer was concerned that it was not ‘within the legislative competence of the Parliament’ as it would see MSPs ‘make provision now for the exercise of powers which it is possible they will acquire in future’.

After it was passed, the Attorney General for England & Wales and the Advocate General for Scotland (the ‘UK law officers’) referred the Continuity Bill to the Supreme Court in April. As the judgment notes, ‘[t]his is the first occasion in the 19 years since the Scottish Parliament commenced its work that there has been a challenge by Law Officers of the UK Government to a Bill of the Scottish Parliament on the ground that it is outside legislative competence.’ The UK law officers argued that the Scottish Parliament did not have the powers to pass the Bill. Why? Because the 1998 legislation devolving powers to the Scottish Parliament (the ‘Scotland Act’), gave with one hand but took away with the other… Scotland has legislative powers but Westminster has reserved various powers to itself. These ‘reserved powers’ include legislating on international relations. The Scotland Act cannot be modified and the UK law officers thought that certain provisions of the bill sought to do this.

The Lord Advocate of Scotland (the chief law officer to the Scottish Parliament as opposed to the Advocate General who is the chief law officer on Scottish issues for the UK government) defended the Scottish Parliament’s right to pass the Continuity Bill. He was joined by the Counsel General for Wales and the Attorney General for Northern Ireland as interested parties. (The Welsh Assembly had started discussing its own ‘Brexit bill’ but agreed terms with the UK government and so withdrew the instrument from its statute book.) The intervention of law officers from other parts of the UK indicates the constitutional significance of this case.

The judgment – ‘yes and no’

All seven Justices of the Supreme Court have unanimously rejected most of the arguments submitted by the UK law officers. However, the court agreed that the vetoing powers (section 17 of the Continuity Bill) were outwith the Scotland Act as the section seeks to modify the Scotland Act which is not permitted by that Act. The court did not agree that the whole bill was outside the competence of the Scottish Parliament because it related to reserved matters of international relations. ‘[The Continuity Bill] simply regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters, which will result from the withdrawal from the EU already authorised by the UK Parliament.’ That might have been the end of the matter were it not for the fact that the UK Act has been passed since the Continuity Bill has come into existence. The Supreme Court was satisfied ‘when addressing the questions in the reference as to whether the Scottish Bill would be within legislative competence, this court must have regard to how things stand at the date when we decide those questions.’ The UK Act has been added to the list of provisions in the Scotland Act which are protected from change. Analysing the Continuity Bill, the Supreme Court has identified a number of sections which it considers modify the UK Act and therefore cannot be law.

Overall, the Supreme Court appears satisfied that, legally, the constitutional balance between the devolved and the central Parliament remains. Scotland will be free to pass a modified bill should it wish to do so and Westminster has retained its powers.

What are the consequences?

The Continuity Bill will need to go back to the Scottish Parliament so that it can vote on the amendments highlighted by the Supreme Court. These are aimed at removing problematic provisions and harmonising the Continuity Bill with the UK Act. Some will feel vindicated in passing the bill while others may now feel that the reference ‘interfered’ with the Scottish legislative process.

Other Brexit news 

Tom Snelling’s blog also referred to the challenge on the validity of the 2016 referendum by the four UK citizens living in the EU27. They sought to do so on the basis of the alleged illegal overspending by the Leave campaign. On Monday, Mr Justice Ouseley (Judge in Charge of the Administrative Court) denied permission to proceed to a full judicial review hearing on the grounds that the claim was brought out of time and “without arguable merit”. The applicants are now, apparently, considering an appeal.