SUPREME COURT HEARS CHALLENGE TO LEGALITY OF SCOTTISH BREXIT CONTINUITY LEGISLATION

Following a two-day hearing last week, a seven-judge panel of the Supreme Court is considering whether the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”) is within the scope of the Scottish Parliament’s legislative competence. The legislation seeks to ensure that Scots law continues to function without interruptions or gaps following Brexit. However, the Scottish Bill has been challenged by the UK Government over its treatment of devolved powers, leaving the Supreme Court to rule on its legality.

Background

The political dispute behind the legal action concerns a set of powers which are technically devolved to the Scottish legislature but are currently exercised from Brussels under EU law. UK and Scottish ministers have agreed that, following Brexit, some of these powers should go into UK-wide frameworks. However, there have been significant disagreements over how these frameworks will operate.

In comparison to the UK Government’s European Union (Withdrawal) Act 2018 (the “Withdrawal Act“), the challenged Scottish Bill seeks to grant Holyrood greater post-Brexit powers, for example, by including provisions which enable Scottish Ministers to propose areas where Holyrood would “keep pace” with EU laws after Brexit.

Submissions (and supplementary cases) have been made for the Attorney General and the Advocate General for Scotland (as applicants, supporting the UK Government’s position) and the Lord Advocate (as respondent, on behalf of the Scottish Government). General Counsel to the Welsh Government and the Attorney General for Northern Ireland also made submissions as interested parties, in support of the Scottish position.

The Legal Arguments

The UK Government contended that the Scottish Bill as a whole is outside the competence of Scottish Parliament because it intrudes into the field of international relations, a matter currently reserved for the UK Parliament under the Scotland Act 1998 (“SA 1998“). Further, the Scottish Bill is said to relate to the UK’s relationship with the EU, with the effect of undermining the UK’s position as it seeks to negotiate its future relationship with the EU. Additionally, the UK Government accuses the Scottish Bill of amounting to a modification of certain provisions of both the SA 1998 and the European Communities Act 1972, which is prohibited under the SA 1998 itself. Finally, the UK Government argues that the Scottish Bill is contrary to the rule of law principles of legality and certainty.

The Scottish Government denies that the Scottish Bill falls within this reserved area of international relations, stressing that it only has effect in the domestic legal order. According to the Scottish Government, the Scottish Bill’s provisions simply seek to uphold the supremacy of EU law and so do not amount to modifications of protected provisions.

The UK Government also argued that the introduction of the Withdrawal Act changed the competence of Scottish Parliament so that, even if the Scottish Bill was within its competence prior to the Withdrawal Act becoming law, the introduction of the Withdrawal Act renders the Scots Bill outside of competence. The Scottish Government emphasised that the question of competence for the purposes of the reference should be assessed by reference to the law at the time the Scottish Bill was passed.

Comment

Whatever the outcome, this case could have important political and constitutional implications.

Should the court uphold the entirety or at least significant portions of the legislation, the UK Government could be placed in a difficult situation. If provisions like those enabling ministers to propose areas to “keep pace” with EU laws are upheld, the stability and certainty of the UK’s internal market post-Brexit could be compromised, creating delay and expense for business and individuals. With such potential difficulties, the UK Government may need to consider the option of striking down the Scottish Bill, which it is technically entitled to do as Westminster remains the sovereign government of the UK. However, such a course of action would be unprecedented and undoubtedly controversial.

Even if the Supreme Court accepts the UK Government’s arguments, this may not represent the end of legal proceedings; the Court has the option of granting the Scottish legislature the opportunity to amend its bill to satisfy competence requirements. This route would entail difficulties of its own in an already tight Brexit timetable.

Ultimately, the outcome of the issues in this case, however reached, will have consequences that go far beyond the current Brexit negotiations and have the potential to shape the relationship between the UK parliament and devolved parliaments going forward.

 

Nusrat Zar
Nusrat Zar
Partner
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Jasveer Randhawa
Jasveer Randhawa
Of Counsel
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Mark Smyth
Mark Smyth
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Claire Hall
Claire Hall
Associate
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