Last week the UK and Scottish governments squared off at the UK Supreme Court in a case relating to the Scottish Parliament’s EU ‘Continuity’ Bill (the Continuity Bill) and whether or not it is constitutional, in light of the provisions of the Scotland Act 1998.
The purpose of the Continuity Bill is to ensure there is continuity in Scottish law after Brexit. It retains EU law in devolved areas such as the environment and food standards, and creates powers for Scottish ministers to amend the law so it can operate effectively outside the EU. It therefore has a similar purpose to the UK government’s European Union (Withdrawal) Act (the Withdrawal Act), which was passed at Westminster in June, controversially without Scottish consent for the devolution provisions.
The Continuity Bill was passed by the Scottish Parliament in March, but two of the UK Government’s senior Law Officers, the Attorney General and the Advocate General for Scotland, referred the bill to the UK Supreme Court in April. This is the first time a bill passed by a devolved parliament has been challenged in this way. A similar continuity bill for Wales was also passed in March, but it is now being repealed following agreement between Westminster and Cardiff over the terms of the Withdrawal Act. Both the Welsh and Northern Irish governments were represented at the hearing last week.
This is a complex case, as more than one of the judges themselves remarked during the proceedings. Judgment is expected in the autumn, and the Continuity Bill could be ruled within or outside the competence of the Scottish government, or it could be referred back to Edinburgh for amendment, in order to make it compatible with UK law.
As a result of the legal challenge being brought by the UK government, the Continuity Bill could not receive Royal Assent before the Withdrawal Act completed its own passage through parliament. The Supreme Court must therefore also consider how the subsequent passage of the Withdrawal Act affects the power of the Scottish Parliament to legislate in relation to Brexit. This issue could prove crucial to how the Court resolves the case.
The UK government claims the Scottish Continuity Bill is fully beyond devolved powers
The submissions made by the UK and Scottish governments illustrate the gulf between the two, both in terms of how they interpret the legal issues under consideration, and in terms of deeper questions of constitutional principle.
The UK government has two main lines of attack. One is the claim that the Continuity Bill ‘relates to’ matters that were reserved to Westminster in the original 1998 devolution settlement, which operates on a reserved powers model that means all areas of law not explicitly reserved to Westminster are within the competence of the Scottish government.
Lord Keen, who as Advocate General for Scotland is the senior legal adviser to the UK government on Scottish law, argued that the Continuity Bill relates to international relations, which is a reserved area of law. This would place the bill beyond the powers of the Scottish Parliament. However, the Scottish view is that the UK is defining international relations in excessively broad terms, and that the bill is merely a way to correct for the domestic effects of Brexit.
Lord Keen also argued that the Continuity Bill affects the powers of the UK parliament. Specifically, the bill gives Scottish ministers a veto over changes made by UK ministers to retained EU law in devolved areas. Again, there is a reasonable counter-argument, which is that the bill simply regulates the exercise of executive powers in devolved areas, which is within the powers of the Scottish Parliament.
The Continuity Bill also removes references to EU law from the founding devolution legislation of 1998. Lord Keen argues that this is akin to the Scottish Parliament seeking to determine its own legal powers, which it may not do. The Scottish government argues that these are redundant ‘spent provisions’, by virtue of the country’s impending withdrawal from the EU, meaning their repeal will have no practical effect.
Relatedly, there was a discussion as to whether it is legitimate for the Scottish Parliament to create powers to amend EU law at all, since Scotland is at present still bound by it. Lord Keen claimed that Scotland cannot legislate for a prospective future scenario of UK Withdrawal. The Scottish response is that these powers would not come into effect until after Brexit, which the triggering of Article 50 makes an established legal fact. Ironically, the UK government is therefore left implicitly arguing that Brexit is a mere hypothetical scenario, while the Scots claim it is inevitable.
If the Court agrees with the UK government on these issues, then the Continuity Bill may be struck down in its entirety and that will be the end of the matter. The Withdrawal Act would then form the basis for retention of EU law in all policy areas, in Scotland as across the whole UK. However, there is an alternative, more contentious, route by which the UK government could win the case.
The Scottish Bill may be struck down due to the subsequent passage of the EU Withdrawal Act
As noted, the Continuity Bill was passed prior to the Withdrawal Act, but was held up by the UK government’s legal challenge. The complication is that the Withdrawal Act itself amends the devolution settlement, including by preventing the Scottish Parliament from modifying the Act itself. A good deal of the hearing this week concerned debate over the precise meaning of the word ‘modify’, and whether the Continuity Bill does therefore modify the Withdrawal Act.
The UK government case is that it certainly does. The intention of the UK parliament, Lord Keen submitted, was to create a single and consistent UK-wide regime by which EU law can be brought into domestic law. The Continuity Bill would create a new sub-category of ‘retained (devolved) EU law’ that would, he argues, frustrate the will of the ‘Sovereign Parliament’.
The Continuty Bill also varies from the UK approach in other respects, notably by retaining the EU’s Charter of Fundamental Rights in Scottish law, and by including a provision by which Scotland can ‘keep pace’ with future EU legislative developments.
The Scottish response is that the Continuity Bill does not actually modify the provisions of the Withdrawal Act, but simply creates a parallel framework which can work alongside that created by Westminster. James Wolffe QC, who as Lord Advocate is the Scottish government’s chief legal officer, drew an important distinction during his oral arguments between ‘reserved’ and ‘protected’ matters. His point is that Westminster could have fully reserved the whole domain of EU retained law, but it chose not to. Instead it simply protected the Withdrawal Act from direct modification, thereby allowing Scotland to pass its own law too.
UK-Scottish relations are in a poor state – the Court’s ruling cannot fix that bigger problem
If the Court is persuaded that the Continuity Bill modifies the Withdrawal Act, then it may rule that the bill was within competence when it was passed, but is outwith competence now as a result of the UK Act. Since the only reason the bill did not become law in March was the UK government’s legal challenge, this would be a controversial way for the UK government to get its way, and would do little to improve relations between Westminster and Holyrood.
Indeed it might mean that this case is simply the start of a new phase of constitutional conflict. There were some signs of how future battle lines might be drawn. Notably, Lord Keen suggested at one point that it was simply ‘practice not convention’ for Westminster to seek consent before amending the powers of the devolved bodies. That may have been an aside, or it could be an indication that the UK government is contemplating taking back additional powers, for instance in areas such as agriculture and fisheries, where new UK-wide frameworks will be required to replace EU law.
The two governments have been at loggerheads over Brexit for most of the past two years. The Scottish government is also due to set out its thinking in the autumn about the path to independence. This week’s court case may prove not to be the end — or even the beginning of the end — of the constitutional crisis. Perhaps we will find that it was merely the end of the beginning.
Judgment in this case is expected in the autumn. Video from both days of argument at the Supreme Court, as well as written arguments and other documents submitted by the parties and intervenors are available on the court’s website.
First published by the Constitution Unit at UCL and reproduced with permission