Share it

This is a live blog of the first day of the hearing of the challenge brought by UK Government Law Officers, the Attorney General and the Advocate General for Scotland, against the legislative competence of the Scottish Parliament’s The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.  Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Emma Boffey, Leigh Monteforte, Shona McCusker, Susan McAlpine and Eilidh Douglas, all from CMS Scotland. 

1715: Day 1 Summary

Day 1 of the hearing has now concluded.

Today, the Court heard the submissions of the Advocate General for Scotland, Lord Keen of Elie QC.  He submitted that the passing of the EU (Withdrawal) Act 2018 by the UK Parliament, and its incorporation into the Scotland Act 1998 restrictions, means that the Scottish Parliament’s Bill cannot stand.  The Scottish Bill and the UK Act are said, by the Advocate General, to be inconsistent with each other’s scheme and purpose: they are essentially seeking to achieve the same thing and only one can prevail. The Scottish Bill is said to be a frustration of the UK Parliament’s sovereign law, seeking to create a second body of devolved law. The Scottish Bill is said to fundamentally undermine the core purpose of the UK Act. The Advocate General also submitted that the Scottish Bill was plainly and directly inconsistent with the UK Act at its most basic level. The UK Government’s position is that the whole of the Scottish Bill is outwith the legislative competence of the Scottish Parliament. The Advocate General submitted that matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament. The introduction of the Scottish Bill, purporting to cover the same field with differing provisions to the UK Act, is legislative disharmony. The Advocate General considers the purpose of the UK Act is to ensure we maintain a common field across the UK following withdrawal from the EU. He invited the Court to conclude that the Scottish Bill was outwith the Scottish Parliament’s legislative competence.

Later this afternoon, the Lord Advocate, James Wolffe QC, the Law Officer for the Scottish Government, began his submissions. He began his remarks by noting that this case was strictly concerned with matters of law, not policy. Either the Scottish Parliament had competence to ready the statute book for exit from the EU, or it did not. The Lord Advocate says that the Scottish Parliament has competence to legislate in relation to any matter not reserved in Schedule 5 of the Scotland Act. He submits that EU law is not a reserved field. So far as matters are not reserved, the devolved institutions may implement that law. Consistent with the division of policy responsibilities under the devolution settlement, the primary responsibility for non-reserved matters lies with the Scottish Parliament and the Scottish Government, and it is therefore appropriate that they decide whether to deal with such matters themselves, or seek UK-wide arrangements.  The Lord Advocate submits that, if EU law ceases to apply in UK, that does not affect the division of policy responsibility in Schedule 5 of the Scotland Act 1998.  Instead, it opens up policy choices to the Scottish Parliament that would not have been available but for the EU law policy constraint. Ultimately, the Lord Advocate suggested that, if the UK Government wishes to constrain the powers of the Scottish Parliament in order to secure a UK-wide approach, it is able to do so.

The Lord Advocate will continue his submissions at 1030 BST tomorrow, Wednesday 25 July 2018.  Join us again then for day 2 of the UKSC Live Blog coverage.

1600: Lord Advocate closes his submissions for the day. The court adjourns and will hear from the Lord Advocate again at 10.30 BST tomorrow morning.

1558: The Lord Advocate suggests that, if the UK Government wishes to constrain the powers of the Scottish Parliament in order to secure a UK-wide approach, it is able to do so. There may well be questions of policy that arise in relation to regulating the market within the UK. Many of the reservations in the Scotland Act already protect that interest. Otherwise, except to the extent that matters can be regulated under section 12 of the UK Act, these are matters for the devolved institutions.

1550: Lord Advocate considers whether the Scottish Bill “relates to” the reserved area of international relations. While in Martin and Most Lord Walker coined a helpful phrase in saying “relates to” must be more than a “loose or consequential” link, it would be a mistake to elevate that phrase to the status of a test. In relation to the purpose of the Scottish Bill, this is not a subjective test. The purpose of the Scottish Bill was to provide for the continuity of laws with, as required, modification on or after exit day by the Scottish Ministers. Having regard to that purpose, the Scottish Bill does not “relate to” international relations. It has effect solely to domestic law, on or after exit day, and makes provision for the impact on domestic legislation for events that have taken place on the international plane.

1541: Lord Advocate turns to the first question under the reference, the question of international relations. In the Lord Advocate’s submission, the Advocate General gives an “unjustifiably wide” scope to the reservation of international relations; an incorrect approach to the phrase “relates to”; and mischaracterises the purpose of the Scottish Bill.

1537: The Lord Advocate accepts that the UK Parliament may legislate new constraints on the powers of the Scottish Parliament, but absent such constraints, EU powers return in line with the current division of policy responsibilities in Schedule 5.  The Advocate General’s submission that the UK Government could not have intended that, on withdrawal, certain competencies would have returned to the Scottish Parliament, is incorrect. What the UK Parliament intended is set out in the Scotland Act. Whilst EU law has changed since 1998, and the Scotland Act was framed to take account of dynamic nature of EU law, the basic division of policy responsibilities is set out in Schedule 5 and does not change.

1533: Looking at the implications of withdrawal, the Lord Advocate submits that, if EU law ceases to apply in UK, that does not affect the division of policy responsibility in Schedule 5 of the Scotland Act. Instead, it opens up policy choices to the Scottish Parliament that would not have been available but for the EU law policy constraint.

1530: Lord Advocate notes that the devolved institutions may not act incompatibly with EU law – but EU law is not a reserved field. So far as matters are not reserved, the devolved institutions may implement that law. Ministers of the Crown may be able to continue to implement EU law for Scotland, but so can the Scottish Ministers. Consistent with the division of policy responsibilities under the devolution settlement, the primary responsibility for non-reserved matters lies with the Scottish Parliament and Government, and it is therefore appropriate that they decide whether to deal with such matters themselves, or seek UK-wide arrangements.

1522: Lord Advocate notes that the Scottish Parliament may legislate in the same field of activity as protected enactments in Schedule 4, but may not modify those enactments. If the UK Parliament wishes to restrict a field of activity, that is included in Schedule 5.

1517: Lord Sumption queries whether, if the UK Parliament passes an Act which applies only to Scotland and alters the law of Scotland, could the Scottish Parliament repeal or amend it the following day? The Lord Advocate submits that it could, unless the Act was made a protected enactment in Schedule 4. Lord Sumption is not inclined to accept this submission.

1515: The Lord Advocate sets out propositions in relation to the devolution settlement. Firstly, the Scottish Parliament has competence to legislate in relation to any matter not reserved in Schedule 5 of the Scotland Act. Section 28(8) says that although the UK Parliament retains the power to legislate on devolved matters, it will not normally do so without consent.

1513: The Lord Advocate turns to the questions in the reference and whether the Scottish Bill was within the competence of the Scottish Parliament when it was passed. Lord Mance in Welsh Medical Costs Reference case said the Welsh Assembly, in that case, either had competence to do what it wanted to do there, or it did not. The same question falls to be answered here. Either the Scottish Parliament had competence to ready the statute book for exit from the EU, or it did not.

1508: The Lord Advocate starts his submissions with some preliminary observations. Quoting Lord Hope, the Lord Advocate notes that the questions in this case are matters of law and not policy. Whether a Bill is “wise or foolish”, or “wise or foolish to be passed by one parliament or another” are not matters for the court. The court is to determine matters with reference to the Scotland Act.

1505: After some technical questions from the court, the Advocate General concludes his submissions.

1502: Advocate General submits that the fourth question in the reference should be answered in the affirmative. As a whole, the Scottish Bill is beyond the competence of the Scottish Parliament.

14.56: A further point made by the Advocate General is that s11-13 of the Scotland Bill amounts to a modification to protected provisions. This is outwith the competence of the Scottish Parliament.

1453: The Advocate General states that the Scottish Parliament cannot proceed on basis that it will amend its legislation in future if it needs to. That is not, in the Advocate General’s submission competent. The UK Act looks at competence of devolved bodies.

1448: The Advocate General submits that the Scottish Parliament cannot know what the scope of its competence will be at time of exit from EU. A parliament cannot act on hypothesis of what its powers might be.

1445: The Advocate General turns to the question concerning provisions of the Scotland Bill which are contrary to EU law. The arguments here are fully developed in the written case. A number of points will be made. The first is that competence is to be assessed at time Scottish Parliament assessed the bill.

1442: The Advocate General notes that these provisions are not subject to any temporal provision. The Advocate General refers to Christian Institute case.  The Advocate General will come on to whether these are workable shortly.

1439: The Advocate General submits that these provisions (Schedule 4) are not spent. The Scottish Parliament cannot determine its own competence. References to EU Law are not spent. It is submitted by the Advocate General that they could only become spent upon the UK’s withdrawal from the EU. The UK has not withdrawn from EU.

1437: The Advocate General refers to Schedule 4 of the Scotland Act. The Advocate General submits that it is for sovereign parliament to amend terms of devolution settlement. Scottish Parliament does not have the power to amend its own powers.  This is an attempt to circumvent that.

1435: The Advocate General refers to point raised earlier by Lord Lloyd-Jones. Paragraph 7 subsection 2 does not assist with the Scotland Bill. The Advocate General submits that it is difficult to see how the Scotland Bill cannot be seen to deal with withdrawal. That deals with submissions on modification.

1431: The Advocate General refers to Paragraph 7 to Schedule 5 of the Scotland Act. The Advocate General says it is clear the Scotland Bill is legislating for leaving the EU. He is not making the case about direct impact. The test is whether the provision in the Scotland Bill relates to the reservation covered in paragraph 7.

1428: The Advocate General responds to point raised by Lord Reed earlier this morning. Will Scottish ministers have to pay damages? The Advocate General submits that it is not about direct effect of these provisions, rather his point is about modification.

1426: The Advocate General states these provisions clearly modify the UK Act which is a protected enactment.

1419: The Advocate General returns to point raised by Lord Sumption and echoed by Lord Reed earlier today, being the introduction of general principles of EU law. The Advocate General says we should look at the UK Act. There is a provision in respect of proceedings begun within two years of exit date regarding damages. The Advocate General compares and contrast that to provision in Scotland Bill. In addressing damages, the Scotland Bill takes a materially different approach to the UK Act.  Sovereign Parliament has set out a provision to retain EU law in the entire UK through Schedule 4 of the Scotland Act. On that basis, it is not competent for the Scottish Parliament to modify it.

1417:  The Advocate General submits that the provisions fail to respect the Scotland Act provisions. It is submitted that it is a modification of the Scotland Act and is in conflict with s.63 of the Scotland Act and so the Advocate General invites the court to find that it is beyond the competence of the Scottish Parliament to legislate in such a matter. That concludes submissions on s.17.

1415 The Advocate General submits the sovereign parliament is entitled to make laws for Scotland. There is no basis for the limitation of the Sovereign Parliament.

1406: The Advocate General submits that S.17 is a modification of the Scotland Act.  The Advocate General submits that S.17 of Scotland bill circumvents Scotland Act.

1404: The Advocate General notes that he was addressing s.17 of the Scotland Bill before lunch. All turn this up in the papers.

1403: Court One, the judges return to the bench.

1301: The court has now adjourned for lunch and will resume at 14:00.

1255: The Advocate General states that s.17 of the Scotland Bill is outside the legislative competent of the Scottish Parliament.

1250: The Advocate General submits that the view of the Scottish Government is that the UK Parliament should proceed with legislation in this area and the position of the Scottish Government is that the Scotland Bill was introduced as a negotiating tactic. The Advocate General suggesting it is clear that the UK Parliament is dealing with a matter of common interest and the Scottish Government recognised this intent.

1249: The Advocate General states that it is for the UK Parliament to legislate in this field. The UK act is a protected Act that cannot be modified by the Scotland Bill.

1247: The Advocate General submits there is a basic misconception with Scotland Bill that the Scottish Parliament has the power to legislate over the entire area of EU Law. The Lord Advocate’s view that devolved competence is widened to cover all areas of EU fails to have regard to the fact that there is a fundamental constitutional change occurring which requires us to address the “common theme“. The Advocate General considers the purpose of the UK Act is to ensure we maintain a common field across the UK following withdrawal.

1240: The Advocate General submits the Lord Advocate’s interpretation of paragraph 7 of Schedule 5 of the Scotland Act is wrong. In the Advocate General’s submission, the Scotland Bill does not fall within the paragraph 7(2) exception rule.

1235: The Advocate General notes it was not anticipated at the time of the Scotland Act that the UK would withdraw from the EU and the legislation has to be interpreted in the light.

1227: The Advocate General refers to the case of Imperial Tobacco – “Matters in which the UK as a whole has an interest should continue to be a matter for the UK Parliament … This includes matters relating to the UK’s Treaty obligations and matters relating to the Single Market.” The Advocate General submits that matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament. The introduction of the Scotland Bill, purporting to cover the same field with differing provisions to the UK Act, is legislative disharmony. How the UK deal with withdrawal is a topic of national interest, we are looking at a major constitutional change and the withdrawal of a source of UK law, reference is made to Miller.

1225: The Advocate General stating it is clear that the Scotland Bill is capable and liable to affect the UK’s international relations for the purposes of Schedule 5 to the Scotland Act.

1224: Lord Sumption noting that the proposition that the sources of law in Scotland in devolved matters differ from those in England is one that is embodied in the Scotland Act.

1219: The Advocate General submits the Scotland Bill as a whole cannot competently create a dual system of EU law in the UK upon withdrawal from the EU. Reference is made to the case of Miller.

1216: Lord Reed notes that if the Scotland Bill is upheld and is enacted after the UK Act, then it would take priority over the UK Act. There would be a difference between the three UK legal systems and this could have a potential bearing on international relations.

1212: The Advocate General submits that the UK Act legislates for the effects of withdrawal from the EU and the Scotland Bill purports to do the same thing but in a manner that is distinct to the provisions of the UK Act.

1209: The Advocate General notes that the UK Act deals with UK wide retention of EU law as a starting point, not an end point.

1207: Lord Sumption noting he can see force in this argument if the UK Act was the result of negotiation with the EU but it is not.

1205: The Advocate General submits that the  purpose of the UK Act  is to provide a relevant guide for how one should approach the reservations in Schedule 5 of the Scotland Act. Matters for the UK as a whole are the responsiblity of the UK Parliament.

12.00: Lord Reed noting that the problem of attributing intention to a legislature was considered in Imperial Tobacco, it is an objective assessment.

1158: Lady Hale has queried where the issue of ‘effect’ comes into play.

1155: The Advocate General refers to the ‘three question structure‘ set out in the Imperial Tobacco case: (i) what is the scope of the subject matter? (ii) what is the purpose of the provision under challenge? and (iii) by reference to that purpose does the provision under challenge relate to the subject matter?

1151: The Advocate General is now considering the case of Christian Institute v Lord Advocate.

1149: The Advocate General states that these were the very words of the Supreme Court in the Miller case.

1148: The Advocate General turns to the first question of the referral. He submits that the withdrawal from the EU is a matter for the UK Parliament. The devolved parliaments in the UK do not have a parallel legislative competence in this matter.

1142: The Advocate General refers to Devolved Guidance Note 1 paragraph 2. This is not a binding agreement or contract and does not give rise to legal rights or obligations. This is reflecting what was said in the Memorandum of Understanding itself.

1140: The Advocate General is drawing the court’s attention to paras 13 and 14 of the Scottish Government’s Policy Memorandum for the Scotland Bill. He states that there is no legal basis for the proposition set out therein.

1135: The Advocate General states that since devolution there has of course been extensive implementation of EU law in non reserved matters by the UK Government. For example, there have been more than 20 such Statutory Instruments since 2015. The Scottish Government’s function of implementing EU law is therefore neither primary nor exclusive.

1129: The UK Government’s position is that the whole of the Scottish Bill is outwith the legislative competence of the Scottish Parliament. The Advocate General seeks to adopt written submissions regarding specific provisions of the Scottish Bill that he submits are outwith the legislative competence of the Scottish Parliament.

1124: Lord Reed is querying how you apply the understanding of ‘modification’ as set out by Lord Hope in the Imperial Tobacco case to the situation where a specific provision is modified. The Advocate General submits that where the enactment affects the provision of a protected enactment then you have modification.

1120: The Advocate General states that it is perfectly clear that the Scottish Bill would operate as a clear modification of the UK Act whether you proceed on the basis of what the UK Government submits is the correct interpretation of the concept of modification or on that put forward by the Lord Advocate.

1117: The Advocate General submits that the Scottish Bill is plainly and directly inconsistent with the UK Act at its most basic level. It creates a category of retained EU law which is additional to the single body of retained EU law protected by the UK Act.

1113: The Advocate General is referring to the judgment of Lord Hope of Craighead in Imperial Tobacco Ltd v Lord Advocate. He says modification was interpreted as a broader concept. The Scottish Bill fails to respect this.

1110: The Advocate General states that the Scottish Bill fundamentally undermines the core purpose of the UK Act.

1107: The Advocate General queries whether it is really the Lord Advocate’s case that the Scottish Parliament would, for example, have competence to pass a Human Rights Act applicable only in areas of devolved competence.

1106: The Advocate General says that the Scottish Bill is most certainly a modification of the UK Act.

1103: The Advocate General submits that the Scottish Bill does not restate the provisions of the UK Act. Rather, it creates a separate and novel body of law. All of the provisions in The Scottish Bill relates to that body of law and not the retained EU law provided for in the UK Act.

1100: The Advocate General refers to the Lord Advocate’s supplementary case that this is an exercise in restatement of the Scotland Act.

1059: The Advocate General observes that the Scottish Bill is a frustration of the UK Parliament’s sovereign law, seeking to create a second body of devolved law.  The UK Act does not want that, explains the Advocate General.

1057: The Advocate General says the Scottish Parliament Bill seeks to repeal certain provisions, by way of regulations under the Bill.  But he says that such repeal is also being made by the UK Act. So which prevails?  He says that the Scottish Bill is inconsistent with the purpose and scheme of the UK Act.

1056: Lady Hale and Lord Reed are asking the Advocate General technical questions regarding the Commencement Order for the UK Act. He offers to come back to them on those questions.

1054: The Advocate General is answering questions from the Court on his opening remarks.  He emphasises that the Scottish Parliament cannot depart from the retained EU law, as established by the UK Act, except to the extent they could have done prior to the UK Act (e.g. implementation of a directive, where they have some discretion).

1052: The Advocate General explains that the Scottish Parliament does not have unlimited power to modify retained EU law, there are prescribed restrictions.

1049: The Advocate General says devolved institutions can still act after Brexit as they did before, if they had that competence in the first place.

1048: The Advocate General says the UK Act recognises that future devolved parliaments might diverge on issues, but the starting point should be the same throughout the UK.

1047: The approach is to ensure that all existing EU law is converted into domestic law on the day the UK leaves the EU, says the Advocate General.

1046: The Advocate General submits that object and purpose of the UK Parliament’s European Union (Withdrawal) Act 2018 is to provide a functioning statute book on the day the UK leaves the EU. The same rules will apply on the day after, as they did before. It would be for future parliaments to make further changes.

1044: The Advocate General says the Scottish Parliament’s Bill cannot stand.  He explains that the UK Parliament’s European Union (Withdrawal) Act 2018 has now been incorporated into the Scotland Act 1998. So, the Scottish Bill would be in breach of a restriction within the Scotland Act 1998.

1043: The Advocate General is submitting that a Bill, as opposed to an Act, has no effect.

1042: The Advocate General emphasises there is a clear distinction in the Scotland Act 1998 between an “Act” and a “Bill”.

1040: The Advocate General explains that he received the Lord Advocate’s third written case submission last night. He says the Lord Advocate’s arguments on this issue are untenable.

1039: The Advocate General says it is impossible for the Lord Advocate to rely on a presumption that the UK Parliament’s Act did not intend to affect this reference concerning the Scottish Parliament’s Bill.

1037: The Advocate General says that the UK Parliament legislates as it sees fit and has set a commencement date for its Act, with no transitional provisions.

1035: The Advocate General notes that the Court needs to address the effect – which he says is immediate – of royal assent having been given to the UK Parliament’s European Union (Withdrawal) Act 2018.

1032: Lord Keen of Elie QC, the Advocate General, is opening his submissions with a number of preliminary points.

1031: The Justices have entered Court 1. Seven Justices will hear the case, being Lady Hale, Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Lloyd-Jones.

1026: Counsel are assembled, we are now waiting for the case to be called and the Justices to enter Court 1.

0954: Good morning from a rather overcast Edinburgh, as we follow the first day of this much-anticipated appeal concerning the legislative competence of the Scottish Parliament’s Brexit legislation, The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the “Bill”). We are expecting proceedings to get underway at 1030 this morning, with the Advocate General for Scotland, Lord Keen of Elie QC, expected to open proceedings. Later on this afternoon, at approximately 1515, we’ll hear from the Lord Advocate, James Wolffe QC.  Followers of the blog may recall both the Advocate General for Scotland and the Lord Advocate last appeared before the Court on behalf of their respective governments during R (Miller & Anor) v Secretary of State for Exiting the European Union & Ors [2017] UKSC 5 (sometimes known as the “Article 50 Brexit appeal”).

 

Welcome to Day 1 of the UKSC Live Blog coverage of the 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.  Section 29 of the Scotland Act 1998 limits the Scottish Parliament’s 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 for 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.  In this case, the first of its kind, the UK Government Law Officers will ask the Court whether the Bill can be within the Scottish Parliament’s 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.

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 at 10.30 BST today. 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 today and continue until lunchtime tomorrow, 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 tomorrow afternoon.

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 on both days of the appeal.

Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts.