UK Constitutional Law Association

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Chris McCorkindale and Aileen McHarg: Continuity and Confusion: Towards Clarity? – The Supreme Court and the Scottish Continuity Bill

Introduction

The Supreme Court has now handed down its judgment in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A reference by the Attorney General and the Advocate General for Scotland. The Bill marked a series of firsts: a consequence of the first UK statute to be passed notwithstanding the refusal of consent by the Scottish Parliament (the European Union (Withdrawal) Act 2018); the first Scottish Government Bill to be introduced with a negative statement of competence by the Presiding Officer; and, the first Scottish Bill to be referred to the UK Supreme Court by the UK Law Officers. In previous posts we have set out what it was (legally and politically) that the Bill sought to achieve and why, in our view, the Bill as introduced arguably was (in light of the Presiding Officer’s contrary view) within the legislative competence of the Scottish Parliament. The Court’s analysis was split into two stages. First, was the Bill within competence when it was passed? The Court said yes, with the exception of a single section discussed below. Secondly, would the Bill be within competence when it receives Royal Assent in light of the intervening effect of the EU (Withdrawal) Act? Again, the Court said yes, but ruled that many of the Bill’s most important and distinctive provisions would now fall outside legislative competence.

Here we set out the key parts of the judgment as they relate to the health of the Bill itself and to the assessment of legislative competence more generally, and we also consider what might come next.

The unsuccessful challenges

The UK Law Officers attacked the competence of the Bill on multiple grounds, most of which were unsuccessful. The Court’s rulings on these points are nevertheless important for the guidance they offer on how legislative competence is to be assessed.

The first, and perhaps the most significant of these because it was the ground upon which the Presiding Officer considered that the Bill as introduced was outwith devolved competence, was that the Bill was incompatible with EU law because, in the UK Law Officers’ submission:

… the Scottish Parliament does not at present have the legislative competence to pass an Act containing provisions [in this case, provisions which allow Scottish Ministers to amend the domestic statute book in devolved areas in ways which might be incompatible with EU law] which cannot be brought into effect until current restraints on legislative competence are removed at a future date.

The Presiding Officer’s assessment was grounded in the principle that devolved legislation cannot seek competence prior to the transfer of that competence by UK primary legislation or by an Order under s30 of the Scotland Act 1998. On this basis, the Presiding Officer took the view that “postponing the exercise of powers until a future date may change the legal effect of a Bill but does not resolve the question of its legal validity.” However, the Court’s position was that “[a]bsent such legal effect, there is no incompatibility with EU law”. Whilst the Presiding Officer has been subject to some criticism for expressing a view with which the Court ultimately did not agree, this criticism is misplaced. He was, here, acting (a) in the exercise of a statutory function, (b) on the basis of legal advice that (c) was offered to him with only limited judicial guidance on the point, and (d) which focused minds during the legislative process on a range of possible vires concerns that otherwise might not have attracted scrutiny.

Second, the UK Law Officers argued that the entire Bill was outwith devolved competence because it “relates to” the reserved matter of international relations, including those with the European Union. Applying the well-established principle that in order to “relate to” a reserved matter a Bill must have “more than a loose or consequential connection” with it, the Court held that the Continuity Bill does not “relate to” relations with the EU. It would not take effect until such times as the UK has no relations with the EU save for those developed by a further treaty between the UK and the EU; and it does not purport to regulate the UK side of current negotiations towards such a treaty but instead “simply regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters.” Indeed, the Court took the view that there is little scope for Scottish legislation to “relate to” international relations other than by implementing the UK’s international obligations.

Third, the UK Law Officers were unsuccessful in persuading the Court that the Bill would be contrary to general principles of public law, namely that it undermines the constitutional framework underpinning devolution and that it is contrary to the rule of law principles of legal certainty and legality. Here the Court provided important guidance regarding the scope of the s33 reference power, which it held allows the Law Officers to refer questions relating to the legislative competence of the Parliament only on the grounds set out in s29 of the Scotland Act. Following AXA, we already know that courts may also strike down at common law devolved statutes that are contrary to the Rule of Law, but we now know (although, as Mark Elliott points out, the Court’s reasoning is less than clear) that such common law challenges can only be raised post-enactment, and not via the s33 reference power.

The section 17 challenge

The one exception to the Supreme Court’s conclusion that the Bill was within competence when passed by the Scottish Parliament was s17. This purported to make the exercise of delegated legislative powers conferred upon UK Ministers by Westminster legislation passed after the enactment of the Continuity Bill conditional upon Scottish Government consent when they affected retained (devolved) EU law.

The UK Law Officers attacked this provision on two grounds. First, they argued that it related to the reserved matter of the UK Parliament, on the basis that it attempted to achieve what the Scottish Government had failed to achieve during the passage of the EU (Withdrawal) Act. This argument was rejected. The purpose of the reservation, according to the Court, was to preserve the constitutional functions, powers or privileges of Parliament, but this could not have been intended to protect legislation enacted by Parliament from the effects of legislation enacted by the Scottish Parliament. The Court confirmed that the devolved legislatures do as a general rule have the power to amend or repeal UK legislation, provided that they do not breach specific competence constraints. This is, indeed, such a fundamental feature of the devolution settlements that it was somewhat alarming to see the UK Law Officers attempting to argue otherwise.

The Supreme Court did, however, accept the UK Law Officers’ second argument, namely that s17 amounted to an unlawful modification of s28(7) of the Scotland Act. Section 28(7) states that the establishment of the Scottish Parliament “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”, and is one of the provisions protected against modification under Schedule 4. This was the first time judges have considered what it means to modify a protected statute, beyond its statutory definition in s126(1) as including amendment or repeal. The Court helpfully clarified that the protection of particular statutes against modification does not prevent Holyrood from making additional provision in the same legal field. This followed from the important distinction between Schedule 4 and Schedule 5: the listing of a statute in Schedule 4 does not remove the entire subject matter of the legislation from devolved competence in the same way as it would have done if included in Schedule 5. Nevertheless, modification goes beyond express amendment or repeal of protected enactments to include any provisions which are in substance inconsistent with them.

On that basis, s17 was found to be inconsistent with s28(7). Although the Court accepted that there would in fact be no impact on Parliament’s sovereignty, since Parliament could amend, disapply or repeal s17, it nevertheless considered that – by purporting to limit the UK Parliament’s capacity to authorise the making of secondary legislation by UK ministers – the provision was inconsistent with the continued recognition of Parliament’s unqualified sovereignty, and therefore tantamount to an amendment of s28(7).

This reasoning is difficult to understand, since it appears to adopt a formalistic approach to the meaning of modification of a protected statute at odds with the substantive approach the Court stated ought to apply. This is underlined by the fact that the decision confirms that Holyrood would be able to legislate after the fact to make UK ministerial powers subject to devolved consent, just as they could repeal or amend them in other ways. More generally, the emphasis on the unqualified nature of s28(7) has two further effects. First, it would seem to deny even an interpretive role for the statutory recognition of the Sewel Convention in s28(8), which it has been suggested might have had the effect of protecting devolved legislation against implied repeal by UK legislation passed without express consent. Second, it demonstrates that s28(7) amounts to more than a symbolic restatement of the UK Parliament’s continuing legislative supremacy but in fact creates a justiciable limit on Holyrood’s law-making powers.

Inconsistency with the European Union (Withdrawal) Act

At the date it was passed, most of the Continuity Bill was thus within Holyrood’s legislative competence. However, the subsequent enactment of the EU (Withdrawal) Act changed matters considerably. Although its significance was not widely appreciated, it had been clear all along that the EU (Withdrawal) Act was itself intended to become a protected statute under Schedule 4. Accordingly, it was imperative that the Continuity Bill be enacted before the EU (Withdrawal) Bill in order to avoid being caught by this new restriction (hence why it was treated as an emergency Bill). However, the effect of the s33 reference was to halt its progress to Royal Assent. By the time of the Supreme Court hearing, the EU (Withdrawal) Act had received Royal Assent. Moreover, an amendment made at Lords Report stage ensured that the amendment to Schedule 4 came into effect immediately upon Royal Assent.

As a preliminary matter, the court had to decide whether it could consider the effect of the EU (Withdrawal) Act. Although all three devolved law officers argued that competence should be judged at the date the Bill was passed, the Court concluded that, the wording of s33 (“the question of whether a Bill … would be within … legislative competence”) indicated that it was required to consider the competence of a Bill if it were to receive Royal Assent at the time of the decision.

The UK Law Officers argued that the entire Continuity Bill would modify the EU (Withdrawal) Act, since the latter’s intention was to create a single body of retained EU law across the UK. But, once again invoking the distinction between Schedule 4 and Schedule 5, this argument was rejected. The Court reiterated that Holyrood could legislate on the same subject matter as the EU (Withdrawal) Bill so long as it did so consistently. This meant that provisions in the Continuity Bill which merely restated provision in the EU (Withdrawal) Bill or which clearly supplemented it remained within the Parliament’s legislative competence. However, large parts of the Bill which were inconsistent with equivalent provisions in the EU (Withdrawal) Bill could not survive. These included: the inclusion of the Charter of Fundamental Rights within the definition of retained (devolved) EU law; more generous provision for rights of action based on incompatibility with the general principles of EU law, for challenging the validity of retained (devolved) EU law, and for preservation of Francovich damages; a stronger interpretive duty to have regard to post-Brexit CJEU decisions; and ministerial powers to rectify deficiencies in the devolved statute book, which were stated in both broader and more constrained terms than the equivalent powers in the EU (Withdrawal) Act.

What now?

The immediate decision now facing the Scottish Government is whether to remove the offending provisions and proceed with the Bill. Although there might be a practical attraction in abandoning the Bill, and with it the complexities of co-existing schemes for Scotland and for the rest of the UK, there might be life in the Bill yet. In his ministerial statement in response to the judgment, the Lord Advocate stressed important provisions that remain intact: s12 (ministerial powers relating to compliance with the UK’s international obligations), s13 (ministerial powers that allow for Scotland to ‘keep pace’ with future developments in EU law post-Brexit) and s26A (a ministerial duty to prepare and consult on proposals concerning the protection of environmental principles). The Lord Advocate has said that the Cabinet Secretary will now consider carefully the terms of the judgment and will consult with all parties on the way forward.

In the medium term, the Scottish Government will also wish to reflect on the broader implications of the judgment for its legislative agenda. On the one hand, whilst the Court rejected the argument that the Continuity Bill itself “relates to” relations with the EU it also left a reminder that “different considerations may arise” regarding further legislation that is required to implement the terms of withdrawal or the UK’s future relationship with the EU. On the other hand, the guidance issued by the Court concerning what constitutes a “modification” to a protected statute seems to give encouragement to the Scottish Government’s commitment to take forward the recommendations of the First Minister’s Advisory Group to introduce new devolved legislation that both restates the rights protected by the Human Rights Act 1998 (itself a protected statute) and supplements these with, inter alia, economic, social, cultural and environmental rights.

As well as its legal importance, the reference has had at least a two-fold political significance. First, whilst the unsuccessful political objective behind the Bill was, first and foremost, to pressure the UK Government to make concessions to the EU (Withdrawal) Act to which the Scottish Government felt able to consent (thereby rendering the Scottish Bill redundant), the Bill has nevertheless served a second political purpose. By holding that (s17 apart) the Bill was within Holyrood’s legislative competence when the legislation was passed, the judgment provides ammunition to those for whom the UK Government’s intervening actions were underhand and for whom the EU (Withdrawal) Act amounts to a unilateral “power grab” by Westminster from Holyrood. Second, because the statutory functions of the Presiding Officer and Law Officers are exercised in a political context, their response to the decision will be important. If the political criticism of the Presiding Officer cuts through, he might become more risk averse about making public (by making a negative statement) any disagreement with the Scottish Government about legislative competence. Likewise, if references by the UK Law Officers produce a more generous approach to devolution by the courts than they might have expected this could (as has been the experience following unsuccessful references in Wales) lessen the UK Government’s appetite to use this procedure again. Alternatively, if neither feels that the sky has fallen down, we might expect to see the disputes about competence that we know go on behind closed doors publicly aired and tested more often in future.

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: Towards Clarity? – The Supreme Court and the Scottish Continuity Bill’, U.K. Const. L. Blog (20th Dec. 2018) (available at https://ukconstitutionallaw.org/))

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