Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The UK’s devolution process, implemented with the understanding of continued EU membership, granted legislative and executive autonomy to Scotland, Wales, and Northern Ireland through specific Acts of Parliament. These Acts, while establishing varying degrees of autonomy, shared a common thread: devolved powers must not contradict UK’s international obligations, particularly EU law.

Background to Devolution

Scotland’s devolution model centers on a reserved powers framework, empowering the Scottish Parliament to legislate on any matter not explicitly reserved for the UK Parliament as defined in Section 29(2) of the Scotland Act 1998. This Act outlines areas outside Scottish Parliament’s purview, including extraterritorial laws, reserved matters, alterations to specific UK Acts (including the European Communities Act 1972), incompatibility with the European Convention of Human Rights or EU law, and attempts to remove the Lord Advocate’s authority in criminal prosecutions and death investigations.

Despite the seemingly clear-cut distinctions, some overlap exists between these concepts, as noted by judicial interpretations. Consequently, a detailed procedure exists to ascertain if proposed Scottish legislation falls within the Scottish Parliament’s legislative competence. The overarching principle underscores the UK Parliament’s sovereignty, granting it the ultimate authority to legislate on any matter, devolved or reserved, as stated in Section 28(7) of the Scotland Act 1998.

Initially, the devolution framework for Scotland and Wales could theoretically be reversed by the UK Parliament. However, the Scotland Act 2016 and Wales Act 2017 solidified these arrangements, establishing the Scottish Parliament, Scottish Government, Welsh Assembly, and Welsh Government as permanent entities within the UK’s constitutional structure (Section 63A SA 1998). This move reinforced the significance of devolution within the UK’s constitution and significantly reshaped the relationship between the Scottish and UK Parliaments. The Scotland Act 2016 formally acknowledges the Sewel Convention (Section 28(8) SA 1998). This convention dictates that the UK Parliament generally refrains from legislating on devolved matters without the Scottish Parliament’s consent, further strengthening devolution.

The Scottish Parliament has granted hundreds of Sewel conventions throughout the two decades since devolution.

The UK’s narrow vote to leave the European Union in 2016 presents significant challenges for Scottish devolution. While the majority of the UK voted to leave, Scotland overwhelmingly voted to remain (62%). Despite this, the UK Government aims to sever ties with the EU, including the jurisdiction of the European Court of Justice, the EU single market, the customs union, and contributions to the EU budget. This placed the Scottish Government in a difficult situation, needing to uphold the democratic will of its people while operating within the framework of the UK’s decision to leave.

Initially, the Scottish Government sought a compromise with the UK Government on the terms of Brexit. However, the proposed terms in the UK’s Great Repeal Bill, later becoming the EU Withdrawal Bill, proved unacceptable. This prompted the Scottish Government to signal that the Scottish Parliament would likely reject a Legislative Consent Motion (LCM) authorizing the UK Parliament to enact Brexit legislation.

Although such a refusal carries limited legal weight given the UK Parliament’s supreme legislative authority and the Scottish Government’s inability to enforce it (Miller v S. of S. for Exiting the EU [2017] UKSC 5), the political implications would be substantial. Following the Scottish Parliament’s refusal to grant the LCM, the Scottish Government, aiming to avoid legal ambiguity in Scotland post-Brexit, proposed its own legislation: the UK Withdrawal from the European Union (Legal Continuity) Bill 2018.

Unlike Acts of the UK Parliament, legislation from the Scottish Parliament does not automatically enjoy a presumption of legality (Imperial Tobacco Ltd v Lord Advocate 2013 SC (UKSC) 153). Therefore, legislative proposals from the Scottish Parliament can be challenged on two primary grounds.

First, Bills from the Scottish Parliament can be contested as unconstitutional during the four-week period between their approval in the Scottish Parliament and Royal Assent (Section 32 SA 1998). During this time, the Advocate General for Scotland, the Lord Advocate, or the Attorney General can challenge the legality of a Bill before the Supreme Court (Section 33 SA 1998).

Second, enacted Scottish Parliament Acts can be challenged in the Supreme Court on grounds of exceeding the legislative competence of the Scottish Parliament (Section 29 SA 1998; AXA v Lord Advocate [2011] UKSC 46).

The UK Withdrawal from the European Union (Legal Continuity) Bill 2018 faced criticism even from the Presiding Officer of the Scottish Parliament, as it aimed to circumvent the EU law limitations on legislative power outlined in Section 29 of the Scotland Act 1998. The Bill proposed incorporating EU law into the devolved statute book as “Retained (Devolved) EU law,” granting Scottish Ministers the authority to amend it for coherence and consistency. Additionally, the Bill sought to require UK Ministers to obtain consent from Scottish Ministers before making changes to certain aspects of Retained EU law.

With the UK’s anticipated departure from the EU, initially scheduled for March 29, 2019, under the UK Parliament’s EU (Withdrawal) Act 2018 (Section 20), the restrictions on the Scottish Parliament and Government’s law-making and executive powers outlined in the Scotland Act 1998 would become irrelevant. However, the Presiding Officer deemed the Scottish Parliament’s attempt to prematurely remove these limitations as excessive. The Attorney General and Advocate General for Scotland agreed, leading them to petition the Supreme Court to assess the legality of the Scottish Parliament’s Continuity Bill. This move was unprecedented, marking the first time in the Scottish Parliament’s two decades that both the Presiding Officer had questioned the competence of a Bill passed by the Scottish Parliament, and the UK Law Officers had formally challenged the competence of a Scottish Parliament Bill before the Supreme Court.

Conversely, the Lord Advocate, along with the Attorney General for Northern Ireland and the Counsel General to the Welsh Government, maintained that the Bill fell within the Scottish Parliament’s competence. The Supreme Court, including two Scottish justices, heard the case in July 2018 and issued its judgment in December 2018.

This case’s unprecedented nature raised several intricate legal questions.

Firstly, it’s crucial to recognize the uniqueness of this action before the Supreme Court. It differs from past legal challenges concerning the legality of enacted devolved legislation, like AXA v Lord Advocate [2011] UKSC 46. In AXA, Lord Hope asserted that Acts of the Scottish Parliament are subject to the supervisory jurisdiction of the Court of Session under common law. This judgment established that Acts of the Scottish Parliament can be challenged based on the limitations outlined in Section 29 of the Scotland Act 1998 and common law judicial review principles. However, he clarified that not all judicial review grounds apply to challenges against Acts of the Scottish Parliament. Given its democratically elected nature and law-making powers, its laws hold the highest legal authority. Consequently, challenges against these laws couldn’t typically be based on grounds of irrationality, unreasonableness, or arbitrariness. Lord Hope emphasized that common law grounds for challenge could only be considered in extreme cases, like when a law attempts to circumvent judicial review or obstruct the court’s ability to safeguard individual rights.

While this viewpoint holds legal and factual weight, the Lord Advocate swiftly dismissed it. These review options, he argued, only apply to enacted laws. Legislative proposals, on the other hand, are solely challengeable within the four-week window stipulated in Section 33 of the Scotland Act 1998. Therefore, the question before the Supreme Court wasn’t about the nuanced application of rule of law principles like irrationality or arbitrariness in exercising powers. Instead, the Lord Advocate framed it as a straightforward inquiry: does the Bill, by avoiding encroachment upon matters under the UK Parliament’s purview, fall within the Scottish Parliament’s legislative competence?

If the question is indeed binary, the crux of the matter revolves around international relations and EU law as international law. Here, too, the issue might be less convoluted than presented by the UK Law Officers. They argued that the Bill oversteps its boundaries because it touches upon sovereign powers solely exercisable by the UK Parliament, namely international relations. The Miller case, where the Supreme Court confirmed that triggering Article 50 TEU fell within the UK Parliament’s purview, lends credence to this argument (Miller v S. of S. for Exiting the EU [2017] UKSC 5). However, this perspective might misinterpret the scope and nature of the powers exercised in the Scottish Parliament’s Bill.

Undoubtedly, the contested Bill deals with EU law, and the Scotland Act clearly prohibits the Scottish Parliament from acting on the international stage or interfering with the sovereign power of the UK Government and Parliament to engage with EU institutions and amend UK law, particularly the European Communities Act 1972, in line with changing EU law obligations (such as new Treaty obligations).

However, the Scotland Act also addresses a distinct, internal dimension of EU law: the Scottish Parliament and Government are barred from enacting legislation or carrying out executive functions that violate EU law. This provision safeguards the UK from legal ramifications arising from actions taken by devolved institutions that could be construed as exceeding their authority. This limitation, outlined in Section 29 of the Scotland Act 1998, forms a cornerstone of the Scottish Parliament’s function, as a significant portion of its legislative activity centers around complying with and implementing EU law.

At the dawn of devolution, the Scottish Parliament and Government were granted authority over areas not reserved for the UK Government and Parliament. Many of these devolved powers, such as agriculture, fisheries, environmental protection, and consumer protection, were exercised at the EU level, shared with member states.

Therefore, the Scottish Parliament was directly tasked with adhering to EU law. Notably, this ‘internal’ aspect of EU law in no way infringes upon the ’external’ aspect exercised by the UK Government and Parliament. It’s already been judicially acknowledged that devolution institutions will experience greater freedom post-Brexit, as many restrictions on their competence will vanish (see Miller). This ‘internal’ aspect of EU law directly pertains to the Scottish Parliament, and it would be illogical if it couldn’t take steps to clarify how this significant shift in its powers would operate.

The Lord Advocate also refuted the UK Law Officers’ argument concerning the contingent nature of the Bill’s provisions. They argued that the Bill’s wording, as drafted, would place the Scottish Parliament in breach of its obligation to uphold EU law until March 29, 2019, as mandated by Section 29 of the Scotland Act 1998. Their argument hinged on the fact that the Bill granted Scottish Ministers the power to enact its provisions once it became law, a power contingent on the UK leaving the EU.

This argument appears weak. Commencement orders are a standard feature of UK law, both devolved and reserved. It’s entirely common and legal for a legislature to anticipate future changes and legislate accordingly. Furthermore, if the contingency never arises, the legal power simply remains unexercised and can be amended or repealed.

The UK Law Officers raised another objection, stating that the Bill couldn’t modify the Scotland Act 1998 regarding the restrictions on legislative competence related to EU law compliance (Section 29(2)(d) SA 1998). The Lord Advocate swiftly dismissed this argument as well.

The devolution framework generally allows Acts of the Scottish Parliament to amend Acts of the UK Parliament concerning devolved matters. This power is a well-established aspect of devolution. Nevertheless, legal and practical limitations must govern this power; otherwise, the devolved Parliament would become all-powerful and completely sovereign, contradicting the very nature of devolution.

The Scotland Act 1998 prevents the Scottish Parliament from amending core elements of the constitutional devolution framework outlined within it. Simply put, the Scottish Parliament cannot grant itself more power. However, the Scotland Act 1998 does allow for certain modifications (Schedule 4 SA 1998). Paragraph 7 of Schedule 4 is particularly relevant here. It permits an Act of the Scottish Parliament to remove “spent” provisions. The central argument before the Supreme Court concerns when the references to EU law limitations on the Scottish Parliament’s legislative competence become spent. The UK Law Officers argued that the Scottish Parliament couldn’t remove these references until after the UK’s exit.

The Lord Advocate considered this view excessively restrictive, preventing the Scottish Parliament from acting proactively until Brexit Day. Given the uncertainty surrounding the precise legal implications of the UK’s departure, the Scottish Parliament, from his perspective, needed to act prospectively to ensure a smooth and legally sound transition for Scots law.

Adding to the case’s complexity is the passage of time. When the Bill was passed in the Scottish Parliament, the UK Parliament had yet to pass its own legislation for an orderly Brexit. Shortly after the legal challenge against the Scottish Bill, the UK Parliament’s EU (Withdrawal) Bill received Royal Assent. This law established “retained EU law” applicable to the entire UK. However, the Scottish Parliament disagreed with the terms of this law, rejected a Legislative Consent Motion, and persisted in enacting its own continuity law.

Consequently, the Scotland Act 1998 was amended to include the EU (Withdrawal) Act 2018 in Schedule 4, making it unamendable by the Scottish Parliament. Therefore, if the Scottish Parliament attempted to introduce a Bill similar to the contested Continuity Bill, it would clearly fall outside its legislative competence. The Lord Advocate, recognizing this, urged the Supreme Court to assess the Bill’s legislative competence based on the date it was passed, not a later date. Evaluating it from a later date would render the referral purely theoretical.

However, even if the Supreme Court were to consider the Bill as of its passing date, the answer is arguably academic. The unamended Bill is now practically unenforceable, superseded by events. The best outcome the Lord Advocate could hope for was a declaration that the Bill was within the Scottish Parliament’s legislative competence at the time of its passing, allowing for the removal of now-unlawful provisions and enabling the amended legislative proposal to become an Act of the Scottish Parliament.

The Supreme Court’s judgment unequivocally supported the Lord Advocate’s position. The court unanimously agreed that when the Bill passed in the Scottish Parliament, it fell within the Scottish Parliament’s legislative competence, except for Section 17. However, due to the subsequent enactment of the UK Parliament’s EU (Withdrawal) Act 2018, sections of the Scottish Bill were rendered obsolete and legally untenable. This rendered the judgment a partial victory for the Lord Advocate. While the Bill, at the time of its passing, largely fell within the Scottish Parliament’s competence, substantial portions are now void due to their conflict with the 2018 Act.

In these times of uncertainty, ongoing dialogue between the UK Government and the Scottish Government is inevitable to resolve this legal clash.

Barnard & Peers: chapter 27

Photo credit: Daily Record