The Lord Advocate - Rt Hon James Wolffe QC
Ministerial Statement: The UK withdrawal from the European Union (Legal Continuity) (Scotland) Bill - Reference by the Attorney General and the Advocate General for Scotland to the UK Supreme Court.
13 Dec 2018
"This morning, the Supreme Court handed down its judgment on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Members will recall that I made a statement to the Parliament on the introduction of the bill, setting out the Government’s analysis of the bill and answering questions on it. I am happy to appear again today and to make a statement on the judgment.
The bill was introduced to ensure that, in any scenario, the Scottish Government and this Parliament would have the tools necessary to prepare Scotland, within their devolved responsibilities, for the legislative consequences of leaving the European Union.
The bill was passed by this Parliament on 21 March. On 17 April, the UK Government’s law officers referred the bill to the Supreme Court. That reference meant that the bill could not be presented for royal assent, and, accordingly, could not become law until the reference was determined.
On 20 June, while the reference was pending before the Supreme Court, the UK Parliament passed the European Union (Withdrawal) Act 2018, which received royal assent on 26 June. That act imposes new limits on the legislative competence of this Parliament. In particular, it imposes a new limit that has the effect that an act of the Scottish Parliament cannot now modify the withdrawal act itself, which is now what is called a “protected enactment”. The provision that made that change in the law took effect when the withdrawal act received royal assent.
As a result of that sequence of events, the Supreme Court has had to address two issues. First, was the continuity bill within the competence of this Parliament when it passed the bill? Secondly, has the position been affected by the changes that were made to this Parliament’s legislative competence—after it passed the continuity bill—particularly the new limit that prevents an act of this Parliament from modifying the European Union (Withdrawal) Act 2018 itself?
On the first issue, the Supreme Court has concluded that when this Parliament passed the continuity bill, the bill was, with the exception of section 17, within the competence of this Parliament. In reaching that conclusion, the court has confirmed the constitutional analysis that I and the other devolved law officers advanced in our submissions to the court. It has affirmed this Parliament’s power, subject to the limits on its competence, to prepare the statute book against the UK’s withdrawal from the European Union.
The court has rejected all the submissions that were advanced by the UK Government’s law officers on the first issue, with the exception of one argument in relation to section 17. Section 17 would have required the consent of Scottish ministers before certain subordinate legislation made by ministers of the Crown could take effect in Scotland. The court has concluded that that section would modify section 28(7) of the Scotland Act 1998 and would, for that reason, not be within the legislative competence of this Parliament.
On the second issue, the court has rejected the submission by the UK Government’s law officers that the coming into force of the European Union (Withdrawal) Act 2018 means that the whole continuity bill is now outwith the competence of this Parliament.
However, the court has concluded that, as a result of the new limit on the legislative competence of this Parliament that has been imposed by the withdrawal act, certain provisions of the continuity bill may not now become law. That was a new limit on this Parliament’s competence, which was imposed after the continuity bill was passed and which is contained in the withdrawal bill—a bill to which this Parliament did not consent.
The court has concluded that the following provisions in the continuity bill would modify provisions in the withdrawal act and, for that reason, cannot now become law: section 2(2), section 5, parts of section 7, section 8(2), sections 9A and 9B, parts of section 10, section 11 and certain other provisions in so far as they apply to, or refer to, section 11, section 26A(6), and parts of section 33 and schedule 1. Had the continuity bill become law before the withdrawal bill received royal assent, all those provisions would have survived.
Of those provisions, members will note, in particular, section 5, which would have preserved the charter of fundamental rights in domestic law, and section 11, which would have given the power to fix deficiencies in retained devolved EU law. As a result of the new limits that have been imposed on this Parliament by the withdrawal act, neither of those provisions can now become law, at least in their current form."...
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