Emma Boffey, associate in the disputes team at CMS, previews 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, which will be heard by the Court on Tuesday 24 July – Wednesday 25 July 2018. The UKSC Blog will be running a live blog on both days of the appeal.

This week, the UK Supreme Court will hear the much-anticipated challenge by the UK Government’s Law Officers, the Attorney General and the Advocate General for Scotland, against the Brexit legislation passed by the Scottish Parliament. The Bill’s full title is The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (hereinafter referred to as the “the Bill” for brevity).

The UK Government’s Law Officers are asking the UK Supreme Court for a ruling on whether the Bill is within the devolved legislative competence of the Scottish Parliament.

The hearing of this challenge promises to put into sharp focus Scotland’s current constitutional tensions, in the lead up to Brexit. The Court will hear from the Law Officers of two very different governments, who each have two very different and competing perspectives on Scotland’s future, following Brexit.

What is the challenge about?

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.

Under section 33(1) of the Scotland Act 1998, the UK Government Law Officers (or indeed, the Lord Advocate) can refer a question to the UK Supreme Court, on whether a Bill or any provision of a Bill of the Scottish Parliament would be within its legislative competence.

The Scottish Parliament passed the 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, following his receipt of legal advice on the issue.

Within the four-week period allowed under the Scotland Act 1998, the UK Government Law Officers referred four main questions to the UK Supreme Court on 17 April 2018. These questions broadly ask whether the Bill is within legislative competence, due to its alleged incompatibility with the terms of Schedules 4 and 5 of the Scotland Act 1998, which includes a reservation relating to “relations with… the European Union”, and whether the Bill is contrary to the constitutional framework underpinning the devolution settlement. It is the first such time a section 33(1) challenge has been brought to the UK Supreme Court, twenty years on from the passing of the Scotland Act 1998 and the Scottish devolution settlement.

Background to the Bill

Following the UK Government’s notification under Article 50 of the Treaty of the European Union, the UK is expected to leave the UK on 29 March 2019. The Scottish Government, as part of its preparations for that event, wishes 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 wishes, 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 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 Bill was being considered by the Scottish Parliament, the UK Parliament were also considering the EU (Withdrawal) Bill, which made provision for various matters affecting Scotland. That legislation was eventually passed by the UK Parliament on 20 June 2018. It was not consented to by the Scottish Parliament and SNP members of the UK Parliament later 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 therefore arises in a politically charged context between the UK and Scottish Governments, those political issues are not for the UK Supreme Court. The Court will be solely concerned with strict legal questions: whether the Scottish Parliament, passing the Bill, was acting within its powers and has respected its legislative competence.

Who will participate in the appeal?

The Court will convene as a bench of seven, with Lady Hale, Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Lloyd-Jones to hear the appeal. This bench includes both Lady Hale as President of the Court, together with both Scottish Justices (Lord Hodge and Lord Reed, who is also the Deputy President of the Court).

The UK Government will be represented by the Law Officers themselves, with Lord Keen of Elie QC expected to lead submissions on their behalf, commencing tomorrow at 10.30 BST on Tuesday 24 July 2018. The Lord Advocate, James Wolffe QC, will also appear in person to defend the legislative competence of the Bill. The Lord Advocate’s submissions are expected to start at around 15.15 BST tomorrow, Tuesday 25 July 2018 and continue until lunchtime on Wednesday 25 July 2018. Two interveners, being John Larkin QC, the Northern Ireland’s Attorney General and the Counsel General for Wales (represented by Michael Fordham QC), are also expected to support the Lord Advocate’s position and will give their submissions on the afternoon of Wednesday 25 July 2018.

Follow the case this week

As the UK Supreme Court tackles these significant issues this week, there will be many opportunities to engage with the proceedings.

The UK Supreme Court will stream proceedings live here.  We will also be running a live blog on the proceedings.  Please return to the homepage of the Blog tomorrow at 10.30 BST for the commencement of our live blog coverage.