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This is a live blog of the second and final 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, Shona McCusker, Eric Johnstone, Kenny Rose and Stephen Phillips, all from CMS Scotland.

1641: Day 2 Summary

Day 2 has now concluded and the proceedings have been brought to a close. The Court will now consider its judgment, before issuing a written decision in due course.

Today, the Court heard from the Lord Advocate, as he concluded his submissions in defence of the legislative competence of the Bill.  The Lord Advocate began his submission by observing that the fact Scotland has two overlapping legislatures does not normally cause difficulties, as the UK Parliament would normally seek consent before legislating in respect of Scotland.  The Lord Advocate described this situation as the first time the UK Government has passed an Act concerning Scotland, notwithstanding that consent was refused by the Scottish Parliament.  The Scottish Bill, in his submission, seeks to go no further than is permissible, within the scheme of policy division in the devolution settlement.  The Lord Advocate submitted that there is nothing in the UK EU (Withdrawal) Act 2018 that precludes the Scottish Parliament from making the provisions in the Scottish Bill that the UK Act has simply not addressed.

Later this afternoon, the Court also heard from Michael Fordham QC on behalf of the Counsel General for Wales. In his submission, “international relations” does not have the expansive meaning which the Advocate General has contended for in his submissions. The Court also heard the submissions of the Attorney General for Northern Ireland, John Larkin QC. He submitted that the UK Act was not relevant to the assessment of competence of the Scottish Bill. He submitted that ultimately, Schedule 5 of the Scotland Act 1998 could have been altered, but was not. The Scottish Bill does not add or subtract from the power of the UK Parliament: in his submission, the Scottish Bill is not encroaching.

Finally, the Court heard a reply from the Advocate General, Lord Keen of Elie QC.  In his reply, he noted that the Lord Advocate’s interpretation of “international relations” is a very narrow construction. Ultimately, he noted that removal of EU law will impact upon the devolved competence, but the Miller case states that the Scottish Parliament has no competence on withdrawal. The Advocate General said that there can be no assumption that EU powers in devolved matters will revert to the Scottish Parliament upon withdrawal; and accordingly, the Scottish Bill is not within the Scottish Parliament’s competence. In his submission, the UK Act has recast the competence of the Scottish Parliament.

We now await the Court’s decision.  Thank you for joining us for the UKSC Live Blog coverage.

1551: Lady Hale closes the day’s proceedings and we await the judgment.

1550: Lord Keen closes his submission.

1549: Lord Keen returns to the argument that the UK Act has re-defined the devolved competences of the Scottish Parliament. Lord Reed points out that the modification provisions have not yet come into force so the difficulty of distinguishing between the Scottish Parliament’s current powers and powers after modifications come into force.

1542: Lord Keen focuses on “affecting the protected enactment” in relation to the definition of “modification” and asserts that the Scottish Bill affects the UK Act. He states that even duplication of the UK Act in the Scottish Bill could be a modification.

1538: Lord Keen asserts that the UK Act has amended the competences of the devolved institutions whether or not covered by the reserved matters set out in the Scotland Act.

1536: Lord Keen returns to the question of “modification”. He asserts that the UK bill has recast the competence of the Scottish Parliament, an argument which the Lord Advocate has rejected.

1534: Removal of EU law constraints will impact upon the devolved competence but referring to the Miller case states that the Scottish Parliament has no competence on withdrawal. Lord Keen asserts that there can be no assumption that EU powers in devolved matters will revert to the Scottish Parliament as not envisaged by the Scotland Act; as the Scottish Bill relates to EU withdrawal, it is not within the Scottish Parliament’s competence.

1528: Lord Keen states that it is agreed that the Scotland Act did not envisage EU withdrawal when providing for legislative competence in respect of EU matters.

1524: Lord Keen refers to Schedule 5 para 7 of the Scotland Act and its references to international relations. Reference is also made to section 126 of the Act which deals with interpretation and asserts that withdrawal from EU clearly within reserved matters.

1519: Lord Keen states that the Lord Advocate’s interpretation of the international relations is a very narrow construction.

1512: Lord Keen states that legislating for the effect of withdrawing from the EU. Reference is made again to the policy memorandum and asserts that its intention to seek continuity of EU law after withdrawal. It is asserted that the UK does not need show that there is a direct impact on international relations for legislation to “relate to” international relations.

1510: Reference is made again to the Imperial Tobacco and the Christian Institute cases in respect of the interpretation of relating to a reserved matter.

1505: Lord Keen makes reference to the Scottish Government’s statements in the policy memorandum.

1502: Lord Keen commences his closing statement.

1455: Mr Larkin considers Section 5 of the Scottish Bill. There will be fundamental rights and principles derived from the  Charter. But once adopted have their own life.

1452: Lord Reed interjects re Imperial Tobacco case. Does modifying include “affecting”?

1450: Mr Larkin considers the Attorney General’s arguments re Christian Institute case.

1446: What relates to Parliament? The Scottish Bill does not add or subtract from the power of the UK parliament. Scottish Bill is not encroaching.

1440: Meaning of “modify” is then considered by Mr Larkin. It is provisions, he contends, that are protected, not policy areas. An element of textual interference is required to modify. Additionality on its own is not modification.  Parliamentary drafting and techniques is relevant. The word “modify” should not be over-complicated. Includes repeal but otherwise straightforward and not met in this case.

1435: Is there a presumption of validity? He refers to Section 63A of the Scotland Act. So there is no reject of such a presumption of validity. ZS v DP on issue of mens rea in unlawful carnal knowledge. Court should adopt an interpretation that suggests constitutionality. Buckley is also referred to and the need to establish clearly any repugnancy. If UK Act is relevant in interpreting the Scottish Bill then a complicated exercise to understand how it impacts.

1426: 3 points that Mr Larkin wants to make with arguments that Scottish Bill limited the power of the UK Parliament to legislate. Reference to NI Legislation. Also to Miller and Irish Free State legislation.

1424: The court asks about the role of the Queen in granting Royal consent. Is she part of Parliament? Mr Larkin argues not.

1420: Mr Larkin makes reference to NI legislation. Whenever a UK Act enters the field the NI Act falls away. This can be shifted and the UK Act could have been made clear that it was deemed to be antecedent but this was not done. Therefore the UK is prospective and does not affect the earlier Scottish Bill.

1416: Is UK Act relevant to assessment of competence of the Scottish Bill? Mr Larkin argues not. The UK Act should be presumed to be prospective. Sch 5 of the Scotland Act could have been altered but has not.

1412: John Larkin QC NI Attorney General now on his feet.

1410: Lord Advocate back up dealing with some housekeeping.

1408: He refers to Welsh Children’s measures made pursuant to convention on Rights of the Child. Reinforce the narrow meaning of international.

1403: Mr Fordham considering impact on international relations. memorandum of Understanding that covers the point as what this means. Devolved administrations can deal with and make arrangements with international organisations so long as not binding on UK. So a narrow meaning for international relations.

1400: Michael Fordham QC back up dealing with some queries.

1352: Proceedings are expected to recommence at 1400.

1303: Subject to finding an example in relation to Lord Sumption’s international relations query, Mr Fordham concludes his oral submissions.

1258: Mr Fordham adopts his written case. He notes that he does not accept that the current referral allows constitutional values that could be the subject of a judicial review to be considered by the Supreme Court here.

1255: Mr Fordham agrees with the Lord Advocate that you need to look at particular cases and examples when considering the use of parallel powers. For example, if a matter is not reserved, but consultation needs to take place first. Mr Fordham uses the example of Welsh legislation requiring that consultations must be submitted in both Welsh and English. Lord Sumption notes this is a procedural point and queries the value of the example. Mr Fordham suggests that if the consultation was held to be invalid of it had not been submitted in Welsh then this might be a more appropriate example.

1253: Mr Fordham submits that it is possible to provide further rights to individuals beyond those under the Human Rights Act and that this does not frustrate the Human Rights Act.

1250: Mr Fordham submits that he cannot accept that the position that the Human Rights Act was meant to be unitary and UK wide. There are examples of duplication – for example between rights under the Human Rights Act and ECHR rights.

1248: Mr Fordham provides an example of an Act of the Welsh Assembly, where a contingency has been used in terms of the implementation date of new taxation legislation. This shows that the devolved legislatures can act now for future circumstances.

1244: Mr Fordham now turns to the question of whether it is contrary to the rule of law for the Scottish Parliament to legislate now for the post-exit position. Mr Fordham submits that the rule of law must be the same for the UK Parliament and the devolved legislatures and that both the UK Parliament and devolved legislatures can legislate now for the post-exit date statutory position.

1238: Mr Fordham submits international relations do not have the expansive meaning which the Advocate General has contended for in his submissions. Section 7(2) will not save this position. It will also not implement an international agreement. Mr Fordham submits the argument that the consequences of withdrawal are not relevant to international relations. The post-withdrawal statute book does not relate to international relations. Lord Sumption queries whether Mr Fordham is able to give an example of something which would relate to international relations. Mr Fordham advises that he will consider this and revert to the court.

1233: Mr Fordham submits that under the UK Act, section 30(a)(1) regulations are important. He notes that there is an inter-governmental agreement in place here which the Welsh Government have signed up to. It is envisaged that a collaborative process will take place. It is envisaged that there will be 26 areas out of 153 (for Wales) that will be the subject of this process.

1229: Mr Fordham queries if previously occupied EU fields revert to the UK Government. The Advocate General commented yesterday that these areas would revert to the UK Government. In Mr Fordham’s submission, this is a new restriction which was not previously in place. There is no competence given to any of the areas previously covered by EU law. He confirms that there is a baseline position that the devolved legislatures had this competence.

1228: Michael Fordham QC begins his oral submissions on behalf of the Welsh Counsel General.

1227: The Lord Advocate concludes his oral submissions.

1226: The Lord Advocate confirms his submission that a parallel power, subject to the competence limits within the Scottish Bill, will not modify the UK Act. Both can sit on the statute book together.

1221: The Lord Advocate notes that constraints are in place in various subsections of section 11 of the Scottish Bill which are not in place in section 8 of the UK Act. The power under section 11 is narrower than the power under the UK Act. The Lord Advocate submits that the Scottish Bill confirms that if the Scottish Parliament could not act in a certain way, then a regulation cannot be made.

1219: The Lord Advocate submits that the concerns of the Advocate General fall away as the powers under section 11 of the Scottish Bill have appropriate constraints in place.

1213: The Lord Advocate notes that the most important point of difference between his submissions and those of the Advocate General is the fixing power under section 11 of the Scottish Bill. The Lord Advocate states that you cannot say in abstract that the use of a parallel power is a modification and you must look carefully at the provisions in question. The Lord Advocate submits that the powers under section 11 of the Scottish Bill are more tightly constrained than under section 8 and schedule 2 of the UK Act.  For example, there is a need for necessity under the Scottish Bill.

1209: The Lord Advocate accepts section 5(4) of the UK Act and section 5(1) of the Scotland Bill are contradictory – the UK Act states that the charter of fundamental rights will not be part of law on or after the exit date and the Scottish Bill states that it will be. Lord Advocate states this the Scottish Bill is a modification of the position under the UK Act.

1206: Lord Advocate accepts that certain provisions of the Scottish Bill would modify the UK Act. These are contained in paragraph 3 of the Lord Advocate’s Supplementary Case.

1201: Lord Sumption asks the Lord Advocate whether matters require to be considered on a line by line basis to confirm whether they are within the legislative competence of the Scottish Parliament. Lord Advocate agrees that this is the case. Lord Advocate submits it would be unsatisfactory for the Supreme Court to hold that the Scottish Bill was within, or partially within, the competence of the Scottish Parliament but to ignore the question of whether the UK Act had meant that the Bill was no longer competent.

1157: Lord Carnwath asking if the Lord Advocate accepts that in principle if you replicate a provision, but you add conditions to it, that is a modification? The Lord Advocate submits it is dangerous to speak in the abstract, one has to look carefully at the provisions in question and ask if it means if the provision in the UK Act is being modified.

1153: In the Lord Advocate’s submission there is nothing in UK Act that precludes the Scottish Parliament from making the provisions in the Scottish Bill that the UK Act has simply not addressed. These provisions do not modify the UK Act.

1149: The Lord Advocate submits the extent to which the Scottish Bill would affect the UK Act. This is an artificial question as the Scottish Bill was passed many months ago before UK Act. The Lord Advocate states that the Advocate General’s submission that the Scottish Bill would modify the entire UK Act is methodologically unsound. The UK Parliament could have put the subject matter of the UK Act into Schedule 5 of the Scotland Act but it did not. Just because the UK Act makes provision for domestic consequences of withdrawal from EU for UK there is no reason that the Scottish Bill cannot do the same so long as it does not modify the UK Act.

1144:The Lord Advocate state the legislative competence to pass the Bill was not effected by the enacted of the UK Act. He also makes a point about the Government of Wales Act, the Lord Advocate accepts the wording is different however it distinguishes between a Bill being passed and receiving Royal assent. It enables a consistent approach to be taken across to devolution statutes.

1139: Lord Reed states we are not dealing with an Act of Scottish Parliament which would cease to be in legislative competence, we are dealing with a Bill that would come into legislative competence, to speak of whether a Bill was of legislative competence is meaningless.

1137: Lord Reed points to “existing Acts”. He notes the Scottish Bill is not yet and Act and that legislative competence is only a concept which is applicable to Acts. The Lord Advocate agrees and state that one has to consider the question “if the Bill were an Act, as read”. 

1135: The Lord Advocate turns to consider the impact of enactment of the UK Act on the Scottish Bill.

1130: The Lord Advocate submits that if the analysis is that there are implicit limits on legislative competence, that emphasises that such an analysis is invited only if the legislature in question was to enact legislation contrary to the norms of legislative competency

1128: Lord Reed points to the AXA General Insurance case.

1126: The Lord Advocate turns to the point of common law review. He suggests the court could take the view that the theory on which common law review arises is that there are explicit limits to the legislative competence of the Parliament. In the Lord Advocate submission, this emphasises the nature of cases which might invite a common law review.

1125: The Lord Advocate states commencement powers may be used to effect a smooth transfer between two regimes. He also makes the point that one has to look at different legislative competence questions as they arise in any given case.

1122: The Lord Advocates submits that as a matter of known legal fact these provisions will become spent next March (upon leaving the EU). Lord Reed suggests the Lord Advocate is more confident in this than some people. Lord Sumption notes the Scottish Bill would never come into force if something comes along such as not leaving the EU.

1120: Lord Reed observes it hinges on the power of ministers to postpone entry into force of section 33 of the Scottish Bill until they make a commencement order. The Lord Advocate agrees.

1118: The Lord Advocates turns to deal with the provisions in the Scottish Bill that deal with spent enactments.

1117: The Lord Advocate refers to the case of Miller. He states that nothing can be done under the Scottish Bill which would be incompatible with the Treaty rights and obligations.

1114: The Lord Advocate states legal certainty and legal continuity are principles of EU law. The power of section 11 of the Scottish Bill is capable of being operated in a manner which is consistent with EU law. If there is a dispute about whether the ministers have got this right, that can be adjudicated by the courts in the relevant way.

1112: Section 11 of the Scottish Bill is the power to fix deficiencies in retained EU law states the Lord Advocate. The intention in relation to this power to make regulations in advance of exit day so the body of EU law can be made ready for withdrawal by fixing elements of EU law which would not work effectively following withdrawal. This, the Lord Advocate says, is precisely the same structure as the UK Act has, the Scottish Bill is not incompatible with EU law.

1108: The Lord Advocate is looking at the provisions in the Scottish Bill that the Advocate General attacks in his submissions.

1107: The Lord Advocate states EU law recognises the distinction between a provisions being enacted and a provision being enforced.

1106: The Lord Advocate states the Scottish Bill deals with a known future event.

1103: Lord Sumption observes it is not a comparison between what Scottish Parliament has done and an Act of UK Parliament it is a comparison with an entirely external source of law which we have signed up to.

1102: In the Lord Advocate’s submission it would be inconsistent with legislative competence of the Scottish Parliament if it could not make provision to deal with future legislative events. UK Government has proceeded on the same analysis.

1100: The Lord Advocate states one should not ignore features of the scheme that deal with the problem of time. Legislation is often enacted with provisions to defer commencement.

1059: The Lord Advocate is now turning to another group of submissions made yesterday by the Advocate General.

1058: The Lord Advocate submits that section 17 of the Scottish Bill does not relate to a reserved matter of the UK Parliament. The purpose of section 17 is to regulate subordinate legislation in the competence of the Scottish Parliament, not the UK Parliament.

1054: The Lord Advocate is now addressing the power for functions to be transferred to Scottish Ministers or exercised by a Minister of the Crown, after agreement or consultation with the Scottish Ministers. He says that section 17 does not affect these powers.

1053: The Lord Advocate says that the UK Parliament always has the power to repeal section 17 of the Scottish Bill or disapply it. He accepts the UK Parliament can delegate powers to Ministers of the Crown within the competence of the Scottish Parliament, but it would then be open to the Scottish Parliament to repeal that. The Justices describe this as a “ping-pong” argument, going round and round.

1051: Lord Reed queries why it is relevant to repeal something, if it isn’t law in the first place?  The Lord Advocate says the reason it is argued by the Advocate General that it isn’t law is because it “modifies”. The Lord Advocate says it does not. Lord Hodge asks whether the Lord Advocate accepts the Power of the UK Parliament includes the power to delegate powers to the Ministers.  The Lord Advocate accepts that. Lord Hodge then asks why impose a further hurdle through section 17 of the Scottish Bill then?

1049: Section 17 of the Scottish Bill does not alter the UK Parliament’s power to legislate for Scotland.  It is open to the UK Parliament to legislate to repeal section 17 of the Scottish Bill or disapply it.

1048: Lord Reed appears interested in this point.  The Lord Advocate tries to focus his submissions back to section 17 of the Scottish Bill only.

1047: Modification means a repeal or textual alteration, and nothing more, asks Lord Sumption?  Yes, says the Lord Advocate, subject to his acceptance that inconsistencies can arise implicitly, or by frustration. If an Act provided for certain rules in Scotland, and an Act of the Scottish Parliament said there were not to apply, that would be modification. But the Lord Advocate says that hasn’t happened here with section 17 of the Scottish Bill.

1045: The structural difference in approach is important, according to the Lord Advocate. Any provision which affects a protected enactment does not automatically “modify” it.

1043: The Lord Advocate is now addressing what the word “modify” means in Schedule 4 of the Scotland Act 1998. He says Schedule 4 and Schedule 5 “reserved matters” are quite different. It does not create a “reserved field” in Schedule 4, as Schedule 5 does. When an Act is included in Schedule 4, it just protects the enactment from modification.

1042: The Lord Advocate says that it is plain that the Scottish Parliament can legislate to regulate the functions of the Ministers of the Crown, where it is within the legislative competence of the Scottish Parliament.  This fits within the division of policy responsibility in the devolution settlement.

1040: The Lord Advocate is now addressing section 17 of the Bill. He says the Advocate General takes issue with this on the basis that it modifies the Scotland Act 1998. The Lord Advocate says this is a provision which applies only to subordinate legislation. It also only concerns subordinate legislation which contains devolved provision, which is defined as that within the legislative competence of the Scottish Parliament. The Lord Advocate says this reflects the policy division in the devolution settlement.  Ministers of the Crown have no responsibility for devolved matters; the Scottish Ministers have this responsibility, together with the Scottish Parliament. The Scottish Parliament ultimately controls matters within its own competence.

1038: The Lord Advocate says that the fact Scotland has two overlapping legislatures does not normally cause difficulties as the UK Parliament would normally seek consent before legislating in respect of Scotland.  The Lord Advocate describes this situation as the first time the UK Government has passed an Act concerning Scotland, notwithstanding that consent was refused by the Scottish Parliament.  The Lord Advocate explains that consent was refused by a significant majority in the Scottish Parliament.

1033: The Lord Advocate is beginning by answering a couple of points which arose yesterday.  He also formally adopts his entire written case, which Lady Hale observes is “always sensible to do“. He invites the Court to read the Policy Memorandum for the Bill as a whole, when considering it.

1028: Counsel are assembled and the Justices are expected shortly.

0949: Good morning from a bright and sunny Edinburgh, as day 2 of this hearing gets underway.  The Lord Advocate will be continuing his submissions this morning and we expect proceedings to start at 1030.  We expect the Lord Advocate’s submissions will take most of the morning and should conclude by lunchtime.

Welcome to Day 2 of the UKSC Live Blog coverage of this 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 are convening 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 is represented by the Advocate General for Scotland, Lord Keen of Elie QC.  He gave his submissions yesterday on day 1 of the hearing. The Lord Advocate, James Wolffe QC, is defending the legislative competence of the Bill. He began his submissions late yesterday afternoon and is expected to conclude by lunchtime today. 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 this 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.