The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – Reference by the Attorney General and the Advocate General for Scotland

Facts

Following the UK's decision to leave the EU, the Scottish Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in March 2018, making provision for retained EU law in devolved areas, without legislative consent having been given for the UK Government's European Union (Withdrawal) Bill. The Attorney General and the Advocate General referred the Bill under s.33 of the Scotland Act 1998. Before the hearing, the UK Parliament enacted the European Union (Withdrawal) Act 2018, which was added to the list of enactments in Schedule 4 to the Scotland Act that the Scottish Parliament cannot modify.

Issue

(1) Whether the Bill as a whole was outside competence because it related to the reserved matter of relations with the EU. (2) Whether the Bill was incompatible with EU law when passed. (3) Whether particular provisions, including one requiring the consent of Scottish Ministers to UK subordinate legislation, modified s.28(7) of the Scotland Act. (4) Whether competence was to be assessed at the date of passing or at the date of the Court's decision, given the intervening Withdrawal Act.

Held

The Bill as a whole was not outside competence. The provision requiring the consent of the Scottish Ministers to UK subordinate legislation was outside competence because it modified s.28(7). Competence was to be judged at the time the Court decided the reference, and by then numerous provisions were outside competence because they would modify the European Union (Withdrawal) Act 2018, a protected enactment.

Ratio

• Legislation relates to the reserved matter of relations with the EU only if it concerns the conduct of those relations; legislating for the domestic consequences of withdrawal in devolved areas does not do so.
• A provision of a Scottish Bill which makes the legal effect of laws made by or under the authority of the UK Parliament conditional on the consent of the Scottish Ministers modifies s.28(7) of the Scotland Act 1998 and is outside competence.
• On a reference under s.33, the question of competence is determined as at the date of the Court's decision, so that a Bill compatible when passed may be outside competence if intervening Westminster legislation has altered the position.

Key reasoning

• The reservation of foreign affairs, including relations with the EU, is concerned with international relations, not with every matter connected with the EU, so preparing domestic law for withdrawal fell within devolved competence.
• Provisions operative only once the UK had left the EU were not incompatible with EU law at the time of passing, since EU law would no longer apply when they took effect.
• Section 28(7) preserves the unlimited power of the UK Parliament to legislate for Scotland; making UK subordinate legislation dependent on the consent of the Scottish Ministers would impose a condition on that power.
• Because the Bill could only become law upon Royal Assent, and the reference procedure exists to determine whether it would be law if enacted, the relevant date was the date of the decision, by which time the Withdrawal Act had been made a protected enactment.

Where it fits in the module

In the devolution materials the case illustrates the reserved-powers model and the protection of parliamentary sovereignty through s.28(7) and Schedule 4, which the Wales Act 2017 mirrors for Wales. It shows Westminster legislating without devolved consent and thereby changing the competence of a devolved Bill, and invites debate about whether the Sewel convention offers any real protection to the devolved legislatures.

Criticisms

• Assessing competence at the date of the decision allowed the UK Parliament, after the devolved Bill was passed and referred, to defeat it by amending the protected enactments, which arguably undermines the reference procedure and legislative autonomy.
• The holding on s.28(7) gives Westminster's sovereignty priority over the practical needs of a coherent post-Brexit settlement in devolved areas.
• The Withdrawal Act was enacted despite the refusal of the Scottish Parliament's consent, so the outcome highlights the non-justiciable status of the Sewel convention established in Miller.