UK Constitutional Law Association

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Christopher McCorkindale and Aileen McHarg: Continuity and Confusion: Legislating for Brexit in Scotland and Wales (Part II)

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. Part I can be found here.

Introduction

Part one of this post examined the significance and the content of the Scottish and Welsh Continuity Bills. With regard to the former, we paid particular attention to the co-ordinated approach that has been taken by otherwise unlikely bedfellows, the SNP Government in remain-voting Scotland and the Welsh Government in leave-voting Wales, to negotiations with the UK Government over the contested devolution aspects of the European Union (Withdrawal) Bill. With regard to the latter, we drew attention to some of the key points of divergence as between the approaches taken in the Withdrawal Bill and in the devolved Continuity Bills as to the content and effects of retained EU law and to the extent, scope and scrutiny of ministerial powers. In this post we turn to consider, first, whether the devolved Continuity Bills are within the legislative competence of the Scottish Parliament. For the Scottish Parliament’s Presiding Officer, as for the UK Government, the devolved Continuity Bills lie outwith legislative competence and therefore are vulnerable to judicial strike down. For the Lord Advocate (on behalf of the Scottish Ministers) and the Llywydd (the Welsh Assembly’s Presiding Officer) these Bills do lie within devolved competence. Second, we will examine what is likely to happen next.

Are the Bills Within Devolved Competence?

There are differences in the competences of the Welsh Assembly and Scottish Parliament – the former, for now, still operates on a conferred powers model, while the latter operates on a reserved powers model – and there may also be differences in the detail of the Welsh and Scottish Continuity Bills. However, these do not seem to explain the different conclusions as to competence by the Welsh and Scottish Presiding Officers. Rather, the key difference concerns how to approach the assessment of legislative competence – an issue on which there is still relatively limited judicial guidance.

Prior to their publication, the Institute for Government suggested that devolved Continuity Bills might be outwith legislative competence on the basis that relations with the EU and its institutions are matters reserved to the UK Parliament. This argument was unpersuasive because such Bills – like the Withdrawal Bill itself – concern the domestic consequences of Brexit rather than relations with the EU per se. In principle, the devolved legislatures are not precluded from taking account of the implications of decisions made regarding reserved matters insofar as these affect devolved matters. They can, for example, legislate to implement international agreements made by the UK Government, although they have no power to enter into such agreements themselves. In any case, the UK Government has accepted that aspects of the Withdrawal Bill, including the key continuity provisions, are within devolved competence for the purpose of application of the Sewel Convention. The argument that it is outwith devolved competence to make any provision relating to the post-Brexit status of EU law must therefore be a non-starter.

Rather, the issue at the heart of the disagreement between the Scottish Presiding Officer, on the one hand, and the Scottish and Welsh Governments and the Llywydd, on the other hand, is different. It concerns whether legislation which contemplates departing from EU law (either as regards the post-Brexit status of retained (devolved) EU law, or as regards ministerial powers to amend retained (devolved) EU law) is compatible with the obligation in section 29(2)(d) of the Scotland Act, and section 94(6)(c) of the Government of Wales Act 2006, not to legislate contrary to EU law. For the Lord Advocate and the LLywydd, the Continuity Bills are not incompatible because any inconsistency with EU law is expressly stated not to take effect until after the UK ceases to be bound by EU law. For the Scottish Presiding Officer, however, validity is to be determined at the time legislation is enacted, not at the time it takes effect. Even if, by the time the provisions of the Scottish Continuity Bill come into effect, the EU law constraint will have disappeared, the Scottish Parliament cannot, in his opinion, legislate in anticipation of an expansion of its competences.

The dispute can be broken down into a number of sub-issues:

  1. What is the correct approach to the determination of legislative competence?
  2. Is the assumption that the EU law constraints on devolved competence will fall away post-Brexit correct?
  3. Is it, in any case, contrary to EU law to take preparatory measures in anticipation of withdrawal?

As regards the first of these issues, the Scottish Presiding Officer argues that: “To date, the courts have taken a strict approach to interpretation of the Scotland Act and specifically rejected the proposition that the UK’s internal constitutional arrangements should be interpreted differently to other statutes.” By contrast, the Lord Advocate and the LLywydd take a more pragmatic approach, arguing that in the context of the Brexit process, it is incorrect to characterise the Bills as anticipating an expansion in legislative competence; rather they are necessary measures to deal with the domestic consequences of leaving the EU.

Which of these approaches is likely to prevail? It is true that the Supreme Court has rejected the argument that, as constitutional statutes, the Scottish and Welsh legislation are to be interpreted differently to other legislation (see Lord Reed in the Inner House and Lord Hope in the Supreme Court in Imperial Tobacco). Whereas in relation to challenges based on encroachment upon reserved matters, the courts are instructed to have regard to the “purpose” and “effect” of impugned legislation, this does not apply to challenges based on breach of EU law. A literal reading of the devolution statutes would therefore suggest that the delayed effect of the Continuity Bills is irrelevant to their legal validity.

However, it is incorrect to suggest that treating the devolution statutes as ordinary legislation means giving them a literal or narrow interpretation. On the contrary, as Lord Hope clearly recognised in Imperial Tobacco, as is the case in any process of statutory construction, both the purpose of the devolution statutes and their context are relevant to understanding the meaning of the words used (see paras 15 and 16). Clearly, the approach taken to the construction of devolved competence has varied in the context of different cases, as well as between different judges. On this key question, then, of the point at which the competence of the Continuity Bills falls to be judged, much might depend on the particular judges hearing the case, and on how the background constitutional narrative is constructed; in particular upon how much weight the court is inclined to give to the autonomy of the devolved institutions as against the authority of the UK-level institutions in determining the domestic consequences of Brexit.

However, the second and third issues identified above might make the answer to this first issue less important than it initially appears. Responding to the Lord Advocate in the Scottish Parliament, Adam Tomkins MSP questioned the assumption (shared by both Presiding Officers) that the EU law constraint would cease to have any content once the UK leaves the EU. Rather, he suggested that the EU law constraint on devolved competence exists as a matter of the will of the UK Parliament when enacting the devolution statutes, independent of the UK’s membership of the EU. If this is correct, legislation contemplating any departure from EU law in Scotland or Wales would continue to be invalid even after Brexit unless the EU law constraint is expressly lifted.

Again, however, this is not a persuasive argument. The Scotland Act (section 126(9)) and the Government of Wales Act (section 158(1)) define EU law as “all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties.” In other words, in the language used in the Miller case, the definition is ambulatory and, as the Supreme Court majority concluded in that case, if the UK ceases to be bound by the EU Treaties, it will be emptied of content. Again, this interpretation finds support in the Withdrawal Bill: if the EU law constraint in the devolution statutes were to continue in effect post-Brexit, it would not be necessary to replace it with a new restriction in relation to retained EU law in order to ensure that all repatriated competences are allocated to the UK rather than the devolved level.

The final issue also potentially renders the temporal question redundant: if there is no breach of EU law at all, then the question of the point at which validity is to be judged simply does not arise. In his written answer, the Lord Advocate argued that it was not incompatible with EU law to make provision for what is to happen when EU law no longer applies, given that the withdrawal process is provided for in EU law itself and that process has already been initiated. In response to a question from Ben Macpherson MSP following his oral statement, he confirmed that, in his view, if the Scottish Continuity Bill is incompatible with EU law because it contemplates post-Brexit departure from EU law, the same argument would necessarily apply to the Withdrawal Bill itself. Since the issue is one of compatibility with EU law, it is no answer to this point to argue that the UK Parliament is a sovereign parliament whereas the devolved legislatures are not. If the question came before the CJEU, the court would not concern itself with the domestic constitutional status of the legislature whose Bill was under challenge. And it is hard to imagine, in the context of a withdrawal procedure designed to secure a staged and orderly transition out of the EU, that the CJEU would conclude that preparatory domestic measures were incompatible with EU law. For this reason, although the answer to the temporal question remains uncertain, we consider that the Continuity Bills are within devolved competence.

An additional competence issue was raised in the Llywydd’s statement regarding the validity of imposing an obligation on UK ministers to seek devolved consent before making regulations affecting retained (devolved) EU law. This is a provision which UK Ministers are likely to want to resist. Nevertheless, the Llywydd seems correct to conclude that the provision is within competence. As she argues, it is uncontroversial to say that the devolved legislatures could validly legislate to remove powers from UK ministers within devolved areas altogether. Accordingly, it seems logically to follow that they must be able to take the lesser step of regulating the use of such powers by making their exercise subject to the requirement of devolved ministerial consent.

A final point of note about the Presiding Officer’s statement relates not to its substance but to the way in which it has changed the dynamic of the legislative process. Whereas until now the practice has been for the Presiding Officer to provide only minimal reasons for any view that a Bill would be outwith legislative competence (highlighting the relevant boundary but without revealing in more detail the reasons why that view has been taken) the very detailed reasons set out by the Presiding Officer in relation to this legislation – reflecting, he said, the “constitutional significance of [the] Bill and the complex issues it presents” – is a welcome step in fulfilling the function of the Presiding Officer’s statement: to “help inform Parliament and to assist Members in ensuring that laws passed are valid.” Rather than being seen as a challenge by the Presiding Officer to the authority of the Scottish Government, or – and for the first time, by proceeding regardless – a challenge by the Scottish Government to the authority of the Presiding Officer, the detailed and public reasons given by both the Presiding Officer and the Lord Advocate should be seen as a welcome opportunity to improve the capacity of Parliament meaningfully to carry out its scrutiny function in relation to legislation that the Supreme Court might or might not hold to fall outwith legislative competence.

What Happens Next?

So, what next? There are at least four scenarios that are worth considering. First, and most straightforwardly, the political pressure applied by the devolved governments might yet pay off in order that the Withdrawal Bill can be passed with the consent of the devolved legislatures, therefore removing the need for the devolved legislatures to give effect to their bespoke Continuity Bills.

Second, as noted above, the UK Government has indicated that it is inclined to exercise its discretion to refer the question of legislative competence to the Supreme Court the Continuity Bills are submitted for Royal Assent. Whilst this power has been exercised by both the Attorney General (unsuccessfully) challenging the competence of, and by the Counsel General for Wales (pre-emptively – but unsuccessfully) defending the validity of, Welsh legislation, neither the UK nor the Scottish Law Officers have used this “nuclear” option in relation to Bills in the Scottish Parliament. Thus far, the possibility that such a reference might be made has either led the Scottish Government to make any necessary changes prior to a Bill’s introduction in order to secure its safe passage to Royal Assent, or it has led to the UK Government affording its devolution counterparts the benefit of the doubt, in the knowledge that contentious legislation (particularly where commercial interests are at stake) is likely to be subject to post-enactment judicial review raised by private parties. The risks on both sides here in part captures why both might seek to avoid making a reference even where legislative competence is contested. On the one hand, if the Scottish and Welsh Law Officers refer the Continuity Bills in order to defend their validity and lose this will inevitably weaken their subsequent political and legal position in relation to the Withdrawal Bill. On the other hand, even if the UK Law Officers are successful in challenging the validity of the Scottish Bill this could have fan nationalist flames at a time when the SNP is actively considering its position on the need for a second referendum on Scottish independence.

Third, if legislative consent cannot be given to the Withdrawal Bill and the Supreme Court upholds the validity of the Continuity Bills the UK Government will be forced to make one of three problematic choices: to maintain clause 11 in its current form and to legislate over the top of (and therefore to trump) the Continuity Bills – a move that would be certain to provoke a justifiable backlash from the devolved institutions; to amend clause 11 so as to remove the retained EU law boundary, and to allow for the devolved institutions to take the lead on the continuity and amendment of devolved retained EU law, subject to new cross-cutting constraints in the devolution statutes (e.g., the continued integrity and operation of the UK single market) – a move that would be likely to come at the expense of legal certainty (as to the interpretation and application of any new cross-cutting constraint by the Supreme Court) and political stability (as the desirability or need for common frameworks is deferred for determination on a subject by subject basis, with a resulting risk of irresolvable ping-pong between the UK and devolved governments as and when those debates arise); or, to accept parallel but varied continuity provisions relating to reserved and devolved matters after Brexit Day, with no re-reservation or new cross-cutting restraints, but again at the expense of legal certainty and political stability: not least of all as to where the reserved/devolved boundary is situated on any given matter and therefore where the divergent approaches to withdrawal, such as to the applicability of Charter rights, will bite.

Finally, if negotiations fail to produce an agreeable compromise and if the Supreme Court holds the Continuity Bills to be outwith devolved competence (a scenario which the Lord Advocate declined to address in the Scottish Parliament due to its hypothetical nature) it is likely that the necessity of providing legal certainty on Brexit Day would override the constitutional requirement that the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislatures. Whether such a scenario would be politically palatable in Scotland and in Wales remains to be seen. What does seem clear, however, is that the political and legal stakes on all sides favour consensus to be reached on the devolution aspects of the Withdrawal Bill. However, as the UK Government is finding out on a number of fronts, a clean withdrawal from the EU which leaves the UK’s territorial constitution untouched is easier said than done.

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 II)’, U.K. Const. L. Blog (7th Mar. 2018) (available at https://ukconstitutionallaw.org/))

One comment on “Christopher McCorkindale and Aileen McHarg: Continuity and Confusion: Legislating for Brexit in Scotland and Wales (Part II)

  1. Michael Maddux
    April 3, 2018

    Thanks for the information.

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