Editors’ note: This is the first of a two-part post on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, introduced into the Scottish Parliament on 27 February 2018, and the Law Derived from the European Union (Wales) Bill.

Introduction

On 27 February, the Scottish Government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Scottish Continuity Bill) into the Scottish Parliament. A similar Bill – the Law Derived from the European Union (Wales) Bill (the Welsh Continuity Bill) – has been presented by the Welsh Government to the LLywydd (the Welsh Assembly Presiding Officer), although at the time of writing, it has not yet been published. These Bills are intended to be alternatives to the application of the European Union (Withdrawal) Bill’s (the Withdrawal Bill) provisions on continuity of EU law and ministerial powers to adjust the statute book in the light of Brexit to matters within the competence of the Scottish Parliament and Welsh Assembly. As such, they represent the latest skirmish in the ongoing battle between the UK and devolved governments as to the implications of EU withdrawal for the devolution arrangements.

As the devolved legislatures are legislatures of limited competence, procedures exist under the devolution statutes to try to ensure that legislation is not enacted which exceeds that competence. As required by section 31(1) of the Scotland Act 1998, the Scottish Continuity Bill was accompanied by a statement by the sponsoring minister (John Swinney MSP) that the Bill would be within the legislative competence of the Scottish Parliament. The reasons for reaching this conclusion were later amplified in a written answer and subsequently an oral statement by the Lord Advocate.

However, under section 31(2) of the Scotland Act, the Parliament’s Presiding Officer is also required to make a statement about the legislative competence of the Bill. For the first time in the history of the Scottish Parliament, the Presiding Officer felt unable to agree with the Scottish Government’s conclusion that the Bill was within competence. Adding to the constitutional complexity, the Llywydd stated that, in her view, the equivalent Welsh Continuity Bill would be within the competence of the Welsh Assembly.

Although the UK Government has as yet made no formal statement about the competence of these Bills, it has been reported that it will invoke its powers to make pre-enactment references to the Supreme Court – which would be another constitutional first in the context of the Scottish (though not the Welsh) devolution settlement. Alternatively, the Scottish Conservative leader, Ruth Davidson, has stated that she would support a post-enactment challenge to the Scottish Continuity Bill.  Either way, if the legislation is not withdrawn and – as seems likely – is passed by the devolved legislatures – it is almost certain that one or both Bills will end up before the courts.

In this post, we explain why the Scottish and Welsh Governments have introduced these Bills, and their political and legal significance. We also outline the content of the Scottish Continuity Bill, highlighting where it differs from the Withdrawal Bill. In a subsequent post, we will discuss the competing arguments about the legislative competence of the Bill, and the significance of the disagreement as to competence, and will consider what is likely to happen next.

The Significance of the Continuity Bills

The significance of the devolved legislatures presenting their own Continuity Bills is at least three-fold. First, the concurrent introduction of these Bills at Holyrood and Cardiff Bay is the culmination of a co-ordinated approach that has been taken by the Scottish and Welsh Governments to negotiations with the UK Government over the contested devolution aspects of the Withdrawal Bill. This approach has been punctuated by high level talks between the Scottish and Welsh First Ministers; by their publication of a joint letter to the UK Prime Minister that described the Bill in its present form as a “naked power grab” and that outlined the amendments necessary, in their view, to “respect the hard-won devolution settlements”; and, by the concurrent publication in Scotland and in Wales of Legislative Consent Memorandums recommending to the Scottish Parliament and Welsh Assembly that consent be withheld to the Withdrawal Bill in its current form.

Second, and following from this, the introduction of the Continuity Bills serves the political purpose of maximising pressure on the UK Government to make the concessions necessary to the Withdrawal Bill in order to achieve consent from the devolved legislatures. In this regard the introduction of bespoke Bills in Scotland and Wales is a concession of failure by the devolved governments – a failure shared, and perhaps attributable to the approach taken, by the UK Government – so far to arrive at the still preferred option of a mutually agreeable Withdrawal Bill enacted by the UK Parliament. Nevertheless, the unlikely alliance between an SNP Government in (Remain-voting) Scotland and a Labour Government in (Leave-voting) Wales has created an effective bulwark against those critics for whom objections to the Withdrawal Bill are too easily dismissed as manufactured “grievance and division”, and so strengthens the hand of the devolved governments at the negotiating table.

Third, at a more practical level, the introduction of the Continuity Bills marks a logical next step from any decision by the devolved legislatures to refuse consent to the Withdrawal Bill in its final form. Absent any measures being taken to convert relevant EU law in devolved areas it is likely that the UK Government would by necessity seek to exploit the conditionality of the Sewel Convention and to legislate notwithstanding the absence of consent from the devolved legislatures. It is for this reason – as Mike Russell has said, the need to “assert, if it has to, the right to legislate for itself the devolved consequences of EU withdrawal” – that the Continuity Bills will proceed as emergency Bills. Against the argument put by the Scottish Conservatives that there is no emergency that justifies legislation made in haste – that (if needed at all) the powers contained in the Bill will have no legal effect until Brexit Day, in a little more than a year’s time – the Scottish Government has taken the view that without this legislation in place before the passage of UK legislation the Scottish Parliament will be vulnerable to the centralising tendencies of the Withdrawal Bill as it stands. The passage of legally valid continuity legislation by the devolved legislatures would therefore remove the sting from that necessity argument and would, at the same time, present problems for the safe passage of the Withdrawal Bill in the UK Parliament itself. As Andrew Tickell has said, it is “increasingly doubtful that the House of Lords would support [the Withdrawal Bill] with the democratic assemblies of Wales and Scotland in open dissent.”

The Content of the Scottish Continuity Bill

The main aims of the Scottish Continuity Bill are to provide for continuity of effect of EU law in devolved areas in Scotland (termed “retained (devolved) EU law”) and to confer powers on the Scottish Ministers to adjust the devolved statute book in the light of Brexit. The structure and content of the Scottish Bill closely mirror the Withdrawal Bill in order to ensure that they can work together. However, there are some important differences, reflecting criticisms made by the Scottish Ministers and others of the Withdrawal Bill.

As regards the continuity provisions, the key differences relate to the status of the general principles of EU law and the Charter of Fundamental Rights (see section 5 of the Bill). First, unlike under the Withdrawal Bill, the Charter is to form part of post-Brexit Scots law in relation to devolved matters.  Second, the Scottish Continuity Bill preserves rights of action based on failure to comply with the general principles of EU law or the Charter, including the ability to disapply or quash enactments or other rules of law, or to quash executive acts. Like the Withdrawal Bill, however, it does not (subject to limited exceptions) permit challenges to the validity of retained (devolved) EU law itself (section 7). Third, there is a limited difference in relation to actions for Francovich damages; as a general rule such actions are not permitted, but this does not apply in relation to any right of action accruing before exit day (section 8).

The differences in relation to ministerial powers are more extensive. The Scottish Continuity Bill seeks to replicate the powers to correct deficiencies arising from Brexit and to comply with international obligations contained in clauses 7 and 8 of the Withdrawal Bill (sections 11 and 12). It does not reproduce the powers to implement the Withdrawal Agreement currently contained in clause 9 of the Withdrawal Bill. However, it does confer a new power on the Scottish Ministers to keep pace with changes in EU law post-Brexit (section 13). This is subject to a five-year post-Brexit sunset clause (extendable for further periods of up to five years).

The scope of the regulation-making powers is also different. For one thing, the restrictions in the Withdrawal Bill preventing the Scottish Ministers from amending retained direct EU legislation or directly effective EU law are removed. Second, use of the powers is subject to a necessity rather than merely an appropriateness test. Third, there are additional restrictions on the use of the powers. They cannot be used to amend equalities legislation, or the Scotland Act 1998, or any of the protected subject matters listed in section 31(5) of the Scotland Act 1998 (i.e., issues subject to the special majority requirement). Nor can they be used in a manner which interferes with the independence of the judiciary, or confers a function on a Scottish public authority that is not broadly consistent with its general objects and purposes.

Finally, there are differences in relation to scrutiny of ministerial powers (sections 14 to 16). First, there is an enhanced scrutiny requirement for regulations subject to the affirmative procedure. These must be laid in draft for 60 days rather than the usual 40 days, and ministers must also consult the Parliament and other interested parties on the draft regulations. Second, Ministers must publish explanatory statements equivalent to those required from UK Ministers, but not devolved ministers, under the Withdrawal Bill. However, the Scottish Continuity Bill does not reproduce the sifting requirement, whereby a House of Commons committee can recommend a higher level of parliamentary scrutiny for regulations made by UK ministers. Third, section 17 of the Scottish Continuity Bill contains a novel provision placing an obligation on UK Ministers making regulations under UK legislation to obtain the consent of the Scottish Ministers prior to making the regulations. This section applies to regulations which are within devolved competence, which affect retained (devolved) EU law, and which are made under powers conferred or modified by an Act of the UK Parliament enacted after the Scottish Continuity Bill comes into effect. The provision is, in other words, aimed at preventing the ministerial powers in the Withdrawal Bill or other Brexit legislation being exercised in devolved areas without the consent of the Scottish Ministers.

The extent of the differences between the Scottish Continuity Bill and the Withdrawal Bill may increase or reduce depending on what amendments (if any) are made to the two Bills as they complete their respective parliamentary passages. But even where the approach is the same, the existence of two separate pieces of legislation raises the possibility that further differences may arise as a consequence of judicial interpretation. Whatever the substantive merits of different approaches, from a purely technical perspective, any variations as between reserved and devolved areas must be regarded as unwelcome since they will further complicate the legal difficulties and uncertainties that will inevitably arise as a consequence of Brexit.

Christopher McCorkindale is a Lecturer in Law at the University of Strathclyde.

Aileen McHarg is Professor of Public Law at the University of Strathclyde.

(Suggested citation: C. McCorkindale and A. McHarg, ‘Continuity and Confusion: Legislating for Brexit in Scotland and Wales (Part I)’, U.K. Const. L. Blog (6th Mar. 2018) (available at https://ukconstitutionallaw.org/))