On 13 December 2018, the Supreme Court handed down judgment in the first reference made to it under section 33 of the Scotland Act 1998 concerning the competence of a Bill of the Scottish Parliament: Re The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill  UKSC 64.
The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Bill”) was passed by the Scottish Parliament on 21 March 2018. It made provision for the retention and domestic of effect of EU law in Scots law after withdrawal from the EU. The Bill was a reaction to the refusal of the UK Government, and the Westminster Parliament, to accept amendments to the European Union (Withdrawal) Bill which had been tabled by the Scottish National Party. The Scottish Government objected in strong terms to the approach of the UK Bill to the devolution settlement, terming it a power grab (and at one point staging a walk-out of Prime Minister’s Questions in protest). The Scottish Government in particular objected to the UK Bill treating all areas of EU competence as returning to the Westminster Parliament, for subsequent onward devolution, as opposed to permitting them to be automatically devolved. The Scottish Government sought, by the passing of its own Bill on the same topic, to force the hand of the UK Government in negotiations over the terms of the UK Bill.
Although some revisions to the UK Bill were made, the Scottish Government continued to recommend that consent not be given the UK Bill under the Sewel Convention. The Westminster Parliament nonetheless passed the European Union (Withdrawal) Act 2018 (“the 2018 Act”), without that consent for the first time, and it received Royal Assent on 26 June 2018.
There was accordingly a clash of inconsistent legislation addressing the retention of EU law, created as a result of the political dispute between the UK Government and the Scottish Government over the role of the devolution settlement after Brexit.
The Attorney General and the Advocate General for Scotland referred the Scottish Bill to the Supreme Court asking the Court to determine if the whole of the Bill, or any part of it, was outside the legislative competence of the Scottish Parliament, as delimited by the Scotland Act 1998. The Supreme Court’s unanimous judgment is a very important contribution to the constitutional law of the United Kingdom and addresses a number of aspects of the devolution framework.
The Court held that the Bill as a whole was not outside competence on the basis that it related to the reserved matter of international relations, as set out in paragraph 7(1) of Schedule 5 to the Scotland Act 1998. Legislating for the effects of withdrawal was not sufficiently closely connected to the international law act of withdrawal itself. The Court also accepted that the mechanisms within the Bill itself to prevent it coming into force, or being brought into force, before exit day were sufficient to ensure that the Bill did not impermissibly modify the European Communities Act 1972 or place the Bill in breach of EU law. Nor did those commencement provisions breach the rule of law.
However, the Court held that section 17 of the Bill was outside competence. This purported to render statutory instruments made by UK Ministers void insofar as they applied to Scotland, unless consent had first been obtained from the Scottish Government. Such a provision was an impermissible modification of section 28(7) of the Scotland Act, which preserves the supremacy of Parliament over Scotland and Scots law, and which could not be rendered conditional by an Act of a devolved legislature.
Between the making of the reference and the hearing before the Court, the enactment of the 2018 Act took effect. One of its effects was to provide that the 2018 Act is itself a piece of legislation which the Scottish Parliament cannot modify. The Court accepted that it must consider the competence of the Bill by reference to the position at the time of the Court’s decision and so was required to assess whether the Bill was incompatible with the 2018 Act.
Although the Court held that the Bill as a whole did not modify the 2018 Act and the duplication of provisions was not in and of itself a modification, it found a significant number of provisions to be outside competence because they did modify the 2018 Act. These were provisions where the Bill had not simply replicated the 2018 Act, but had made different provision (or were sections ancillary on those different provisions) such that Scots law would diverge from the position prescribed by the 2018 Act. Of particular significance was the ruling that the power given to Scottish Ministers in section 11 of the Bill to remedy deficiencies in retained EU law under the Bill was outside competence.
Jason Coppel QC and Christopher Knight acted for the Attorney General and the Advocate General for Scotland on the reference, instructed by the Government Legal Department.