Holyrood EU Continuity Act provisions conflict with UK Act: Supreme Court

The Scottish Government’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was, apart from one section, within the competence of the Holyrood Parliament, when introduced, but a number of its provisions are now inconsistent with the UK’s EU Withdrawal Act and cannot be given effect for that reason, the UK Supreme Court ruled today.

Seven Justices unanimously rejected the challenge by the Attorney General and the Advocate General for Scotland on three out of four questions originally referred to the court on the legislative competence of the bill, but held that the competence of the bill must be judged as if it were now to receive royal assent, and listed a series of provisions which are outside competence as a result of the passing of the UK Act.

Lady Hale, Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Lloyd-Jones gave the decision on the bill, which purports to make provision for ensuring the effective operation of Scots law (so far as within devolved legislative competence) on and after UK withdrawal from the EU.

The competence of the bill as a whole was challenged on the ground that it related to relations with the EU, a reserved matter in terms of the Scotland Act 1998. This was rejected in short terms: to relate to a reserved matter, a provision had to have more than a loose or consequential connection with it. The bill did not relate to relations with the EU; it simply regulated certain of the legal consequences of the cessation of EU law as a source of domestic law.

In a single judgment the court stated: "Parts of the argument of the UK law officers appear to suggest a wider objection that separate Scottish legislation about the consequences of withdrawal is legally untidy, politically inconvenient or redundant in the light of the corresponding UK legislation. But we are not concerned with supposed objections of this kind, which go to the wisdom of the legislation and not to its competence."

The successful challenge concerned s 17 of the bill, which relates to subordinate legislation made by UK ministers after withdrawal on matters of retained EU law which, if they were contained in a statute, would be within the legislative competence of the Scottish Parliament. The section provides that any such subordinate legislation will be of no effect unless the consent of the Scottish ministers is obtained. This, said the court, would be outside the legislative competence of the Parliament because it would modify s 28(7) of the Scotland Act, which preserves the power of the UK Parliament to make laws for Scotland, in that it would make the effect of laws made by the UK Parliament conditional on the Scottish ministers’ consent. It would also now modify provisions of the UK Withdrawal Act. A separate submission that it would also relate to the reserved matter of the UK Parliament was however rejected.

Section 33 of and sched 1 to the bill, which purported to repeal provisions said to be spent as a result of withdrawal from the EU, including the Scotland Act prohibition on acting incompatibly with EU law, were held competent. Although the UK law officers argued that the Parliament was determining its own competence and purporting to amend the devolution settlement, the court held that repealing spent provisions did not amount to an encroachment of this sort, and it was within the competence of the Scottish Parliament to provide in advance for UK withdrawal.

Similar considerations applied to various other provisions challenged as incompatible with EU law or as modifying s 2(1) of the European Communities Act 1972. None of these provisions would take legal effect until the provisions of EU law with which they were incompatible had ceased to have effect, the court said. Without such legal effect, there was no incompatibility with EU law and no modification of the 1972 Act. A “residual challenge" based on the rule of law was misconceived: the court’s remit "does not extend to addressing arguments which are either complaints about the quality of the drafting of a bill or seek to raise uncertainties about the application of a Bill’s provisions in future circumstances which may or may not arise and which, should they occur, may require amending legislation”.

However separate consideration had now to be given to the effect of the EU Withdrawal Act. "In the rare circumstance in which there is supervening legislation by the UK Parliament which amends the Scotland Act and thereby changes the legislative competence of the Scottish Parliament after the Scottish Parliament has passed a Bill, this court’s decision may be different from what it would have been if the Scotland Act had not been so amended. The amendment of the Scotland Act by the UK Withdrawal Act is such a circumstance”, the court stated.

The UK Withdrawal Act was not a reserved matter but it was protected against modification under sched 4 to the Scotland Act. While the court rejected an argument that the whole bill would modify the UK Act, several provisions of the Scottish bill in whole or in part amounted to such modifications. These were: s 2(2) (EU derived domestic legislation); s 5 (Charter of Fundamental Rights); ss 7(2)(b) and 7(3), 9A and 9B (challenges to retained devolved law); s 8(2) (relating to the Francovich case); s 10(2), (3)(a) and (4)(a) (interpretation of retained devolved EU law); s 11 (power to remedy deficiencies in retained devolved law); ss 13B, 14, 14A, 15, 16, 19(1) and 22 (to the extent that these provisions relate to s 11); s 26A(6) (application of environmental principles); and s 33 and sched 1, paras 11(a) and 16.

Alison Atack, President of the Law Society of Scotland, commented: "Today’s judgment means that the Scottish Government has a decision to make on whether to bring forward a revised bill.

"With under four months to go until we are due to leave the EU, time is extremely limited. The Scottish Government will have to act quickly if it intends to bring forward a new bill which takes account of the points raised in the Supreme Court judgment and which will allow enough time for it to go through parliamentary processes and for proper scrutiny.

"We are keen to play our role in scrutinising legislation and the large body of subordinate legislation to help in the completion of this process by 29 March next year. At that point we need to be certain that EU law has been incorporated into our domestic law."

The Scottish Government has since confirmed that it accepts the judgment "in its entirety", and that Brexit Secretary Mike Russell will have discussions with all parties in the Parliament before determining the way forward.

Click here to access the court’s judgment.