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Emma Boffey, associate in the disputes team at CMS, comments on the decision in the reference by the Attorney General and Advocate General for Scotland, concerning the legislative competence of The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, which was handed down by the UK Supreme Court on 13 December 2018.  During summer 2018, the UKSC Blog ran a live blog, covering both days of the appeal’s hearing. 

In an action packed month for Brexit observers, it would have been easy to have missed the significance of the UK Supreme Court’s decision in the matter of THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, which was handed down on Thursday 13 December 2018.

The UK Supreme Court ruled that parts of the Scottish Parliament’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the “Scottish Bill”) are outwith the Scottish Parliament’s legislative competence. The decision is not only constitutionally and legally significant, but also politically indicative. This decision, and the fact it was litigated in the first place, underscores the ever-growing gulf between the UK Government and the Scottish Government on matters relating to Brexit and Scotland’s future following Brexit.

What was the challenge about?

July 2018 saw a constitutional challenge before the UK Supreme Court, brought by the UK Government’s Law Officers against the Scottish Bill.

The Scottish Parliament’s legislative competence is not unlimited. Section 29 of the Scotland Act 1998 limits its competence to matters which are not “reserved” in Schedule 5 of the 1998 Act. There is no separate list within the 1998 Act of “devolved matters”, with the premise being that anything which is not reserved, is treated as devolved. Certain other restrictions on competence are also provided in Schedule 4 of the Scotland Act 1998.

The Scottish Parliament passed the Scottish Bill on 21 March 2018. It was the first time the Scottish Parliament has passed legislation which its own Presiding Officer did not believe was within its legislative competence. This challenge also marked the first time in nearly two decades of devolution that a challenge has been taken against the competence of a Scottish Parliament Bill to the UK Supreme Court, under section 33(1) of the Scotland Act 1998.

Background to the Scottish Bill

Following the UK Government’s notification under Article 50 of the Treaty of the European Union, the UK is expected to leave the EU on 29 March 2019. The Scottish Government, as part of its preparations for that event, wished to continue the effect of existing devolved law in Scotland, so that Scots law operates on the day after Brexit as it did the day before. The Scottish Government also wished, so far as possible, for Scots law to continue to be updated and aligned with new EU law, to ensure consistency and predictability for those living and working in Scotland, and those trading with Scotland in Europe.

The Scottish Bill was therefore designed to (i) save all domestic devolved law relating to the EU and incorporate all directly applicable devolved EU law into domestic Scots law; (ii) give the Scottish Ministers powers to ensure that such devolved law that is saved or incorporated into domestic law continues to operate effectively after the UK has left the EU; and (iii) give the Scottish Ministers the power to, where appropriate, ensure that Scotland’s laws keep pace with developments in EU law.

At the same time as the Scottish Bill was being considered by the Scottish Parliament, the UK Parliament was also considering the separate European Union (Withdrawal) Bill, which made provision for various matters affecting Scotland. That legislation was eventually passed by the UK Parliament on 20 June 2018 (the European Union (Withdrawal) Act 2018, the “UK Act”). The UK Act was not consented to by the Scottish Parliament. This was the first time UK legislation having direct impact on matters devolved to the Scottish Parliament had been enacted by the UK Parliament without such consent. SNP members of the UK Parliament had walked out of Prime Minister’s Questions, in protest at the limited time available for debate on certain of its clauses affecting Scotland and their impact on the devolution settlement.

Although the challenge arose in a politically charged context between the UK and Scottish Governments, the UK Supreme Court was solely concerned with strict legal questions in this challenge: whether the Scottish Parliament, passing the Scottish Bill, was acting within its powers and has respected its legislative competence.

The UK Supreme Court’s decision

The judgment was delivered by the Court nearly six months after the challenge was heard. For those who have read the judgment, it may be apparent why. The judgment is lengthy, detailed, and technically complex. But for constitutional watchers, it is a judgment certainly worth waiting for. It is delivered on a unanimous basis by seven Justices of the UK Supreme Court (including the two Scottish Justices, Lord Reed and Lord Hodge, together with the Northern Irish Justice, Lord Kerr, and Welsh Justice, Lord Lloyd-Jones). The judgment is a tour de force of some of the most important and fundamental principles of the Scottish devolution settlement. It is likely to be regarded in the future as an important and significant addition to the constitutional jurisprudence on Scottish devolution.

What parts of the Scottish Bill were ruled outwith legislative competence?

Section 17 of the Scottish Bill was perhaps the most challengeable aspect of the Scottish Bill. It provided that subordinate legislation made by Ministers of the UK Government on matters of retained EU law after Brexit, which, if they were contained in a statute, would otherwise be within the competence of the Scottish Parliament, would first require the consent of the Scottish Ministers.

On this question, the Court found that section 17 of the Scottish Bill would, in effect, make subordinate legislation conditional on approval by the Scottish Ministers and would therefore be inconsistent with section 28(7) of the Scotland Act 1998, which keeps the UK Parliament’s unqualified legislative power in Scotland. The Court therefore found that section 17 of the Scottish Bill must be treated as impliedly amending or modifying the Scotland Act 1998 and is therefore outwith the legislative competence of the Scottish Parliament.

Top trumps: the supervening effect of the UK Act

Controversially, the Court also found itself required to consider the subsequent impact of the UK Act.

Although the UK Government, in their written case prior to the oral hearing, had submitted that the Scottish Bill fell to be assessed as at the date of its passing, during oral submissions the Advocate General for Scotland changed this position. He submitted that the Court had to consider matters in their current state, which meant also taking account of the terms of the UK Act. The UK Act, which was passed after the Scottish Bill, supervened to amend the terms of the Scotland Act 1998, adding itself to the list of reserved matters which the Scottish Parliament cannot modify. The UK Act was not approved by a Legislative Consent Motion of the Scottish Parliament in accordance with the “Sewell Convention”. However, following judgment in the earlier Supreme Court case R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the view taken again was that the UK Act effectively trumped the Scottish Bill, while it awaited the outcome of this constitutional challenge.

The result underscores once again that the UK Parliament has supreme sovereignty on matters of UK law and, notwithstanding the existence of the Scottish Parliament, the UK Parliament retains undiminished power to legislate for Scotland. The result confirms that, as a matter of UK constitutional law, the UK Parliament may trump Scottish Parliament legislation at will and/or alter the Scottish devolution settlement without any requirement to obtain the consent of the Scottish Parliament.

A mixed victory

On the other matters before it, the UK Supreme Court found against the UK Government Law Officers, ruling that the Scottish Bill as a whole was not outwith the Scottish Parliament’s legislative competence in a more general sense and that the remaining provisions which had been challenged were within the Scottish Parliament’s legislative competence. This mixed result meant that both sides were able to claim (some) victory from the judgment.

What happens next?

Following this judgment, it is now for the Scottish Government to determine how much of the Scottish Bill they wish to salvage and proceed to have enacted into law. Given the subsequent passing of the UK Act, the UK Supreme Court has also now pointed out the other provisions in the Scottish Bill which will be in conflict with the UK Act. A period of reflection and analysis will therefore be required on the Scottish Bill, to determine the appropriate way forward and its impact on Scotland’s preparations for Brexit.

As both the Scottish and UK Governments digest this highly complex and constitutionally significant judgment, the politics of the case are yet to play out fully. However, it is clear that the subsidiary position of the Scottish Parliament to the UK Parliament and the latter’s unfettered powers to legislate for Scotland have been re-affirmed. This in turn may have very significant political ramifications in the context of the ongoing path to Brexit and the negotiation of the UK’s new relationship with the EU.