The UK Withdrawal From The European Union (Legal Continuity) (Scotland) [2018] UKSC 64

The UK Supreme Court considered whether the Scottish Parliament's UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was within its legislative competence. The Court held the Bill was not generally outside competence, but section 17 and various provisions modified by the subsequently enacted UK Withdrawal Act 2018 were ultra vires.

Facts

Following the UK’s notification under article 50 TEU on 29 March 2017, the UK Government introduced the European Union (Withdrawal) Bill to provide for legal continuity after withdrawal. The Scottish Government, dissatisfied with proposed amendments being defeated, introduced its own Bill – the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – in the Scottish Parliament on 27 February 2018. The Presiding Officer expressed the view that the Bill exceeded legislative competence because it would not be compatible with EU law at the time of passing. The Scottish Parliament passed the Bill on 21 March 2018. The Attorney General and Advocate General for Scotland referred the question of legislative competence to the Supreme Court under section 33 of the Scotland Act 1998. Between the reference and the Supreme Court’s judgment, the UK Bill received Royal Assent on 26 June 2018 as the European Union (Withdrawal) Act 2018, which amended Schedule 4 to the Scotland Act to add itself to the list of protected enactments.

Issues

The reference posed four principal questions, supplemented by two further questions arising from the enactment of the UK Withdrawal Act:

• Whether the Scottish Bill as a whole was outside competence as relating to the reserved matter of relations with the EU, contrary to the constitutional framework, or contrary to the rule of law;
• Whether section 17 (requiring Scottish Ministers’ consent to certain UK subordinate legislation) modified section 28(7) of the Scotland Act or related to the reserved matter of the UK Parliament;
• Whether section 33 and Schedule 1 (purporting to repeal spent EU law references in the Scotland Act) breached the restriction in paragraph 4(1) of Schedule 4;
• Whether various provisions were incompatible with EU law, modified the European Communities Act 1972, or were contrary to the rule of law;
• Whether the Court could consider the effect of the UK Withdrawal Act when assessing competence; and
• The extent to which the UK Withdrawal Act rendered Scottish Bill provisions outside competence.

Arguments

UK Law Officers

The UK Law Officers contended the Bill as a whole related to relations with the EU (a reserved matter), undermined the constitutional framework and legal certainty, and that section 17 modified section 28(7) by limiting the UK Parliament’s law-making power for Scotland. They argued section 33 and Schedule 1 modified protected provisions and that the Scottish Parliament could not legislate now for a future expansion of its competence. Following the UK Withdrawal Act, they argued the Scottish Bill in its entirety modified that protected enactment.

Lord Advocate

The Lord Advocate submitted that the Bill regulated only domestic legal continuity, not international relations, and section 1(2) postponed legal effect until UK withdrawal, avoiding any incompatibility with EU law or modification of the 1972 Act. Section 17 was said merely to add to, rather than modify, section 28(7). The provisions to be repealed were said to be ‘spent’ on UK withdrawal under paragraph 7 of Schedule 4. The Counsel General for Wales and Attorney General for Northern Ireland intervened with similar submissions on the limits of ‘modification’.

Judgment

Scope of section 33 reference

The Court held that a section 33 reference is concerned exclusively with ‘legislative competence’ as defined by section 29(2). Wider public law grounds such as the rule of law are relevant only insofar as they assist in resolving whether the section 29(2) limits are breached. They are not independent grounds of challenge in this context.

Question 1: The Bill as a whole

The Court held the Bill did not ‘relate to’ relations with the EU. It would take effect only at a time when there will be no legal relations with the EU; it did not affect the prerogative power to negotiate treaties or the conduct of negotiations. It simply regulated the domestic legal consequences in Scotland of the cessation of EU law as a source of law on devolved matters. Objections that the Bill was ‘legally untidy’ or ‘politically inconvenient’ went to wisdom, not competence.

Question 2: Section 17

Section 17 made the legal effect of UK subordinate legislation conditional on the consent of Scottish Ministers. The Court held this would modify section 28(7) of the Scotland Act, since ‘Parliament cannot meaningfully be said to “make laws” if the laws which it makes are of no effect.’ It was therefore outside competence by virtue of section 29(2)(c) and paragraph 4(1) of Schedule 4. However, section 17 did not ‘relate to’ the reserved matter of the UK Parliament under paragraph 1(c) of Schedule 5; it did not impair Parliamentary sovereignty itself, since Parliament could repeal section 17 at any time.

Question 3: Section 33 and Schedule 1

The Court rejected the argument that ‘spent’ meant ‘literally meaningless’. A statutory provision is ‘spent’ if it has no continuing legal effect. The constraints in section 29(2)(d) and section 57(2) referring to EU law would cease to have effect on UK withdrawal. Construing section 36(2) narrowly under section 101(2), the Scottish Ministers could only bring section 33 into force after UK withdrawal. Accordingly section 33 and Schedule 1 were not, on this ground, outside competence.

Question 4: Incompatibility with EU law and the 1972 Act

Section 1(2) of the Scottish Bill postponed legal effect of any incompatible provision until the relevant EU law ceased to apply. There was therefore no incompatibility with EU law and no modification of section 2(1) of the 1972 Act. Rule of law arguments were misconceived in the section 33 context.

Effect of the UK Withdrawal Act

The Court held that under section 33, competence is to be assessed at the date of the Court’s decision, asking whether the Bill ‘would be’ within competence if it received Royal Assent. The use of the conditional mood was significant. Where supervening UK legislation amends the Scotland Act, the Court must take account of it. The UK Withdrawal Act, by adding itself to paragraph 1(2) of Schedule 4, protected itself from modification by Acts of the Scottish Parliament.

Examining individual provisions, the Court found numerous provisions implicitly modified, disapplied, or repealed parts of the UK Withdrawal Act, including: section 2(2) (failing to exclude the 1972 Act); section 5 (treating the Charter as part of Scots law contrary to section 5(4) of the UK Withdrawal Act); section 7(2)(b) and (3); section 8(2); sections 9A and 9B (ancillary); section 10(2), (3)(a) and (4)(a); section 11 (parallel regulation-making power lacking the Schedule 2 conditions); ancillary sections 13B, 14, 14A, 15, 16, 19(1), 22 (to the extent they applied to section 11); section 26A(6); section 17; and section 33(1)-(3) with Schedule 1 paragraphs 11(a) and 16.

Implications

Legal principles

The judgment confirms several important principles concerning the devolution settlement. First, a section 33 reference is confined to competence under section 29(2); it is not a vehicle for general public law challenge. Secondly, ‘modification’ of a protected enactment is not confined to express amendment – implicit amendment, disapplication, or conflict with the protected enactment’s unqualified continuation in force suffices. Thirdly, additional or parallel provision in the same field of law does not, of itself, amount to modification, preserving the distinction between Schedule 4 (protection from modification) and Schedule 5 (reservation of subject matter).

Significance for devolution

The decision clarifies that the Scottish Parliament can legislate prospectively to provide for the consequences of a contingency such as UK withdrawal, provided the legal effect is postponed so as not to conflict with current restrictions. However, devolved legislatures cannot impose conditions on the legal effect of UK Parliament legislation: such conditions modify section 28(7) and are outside competence. The Court reaffirmed that the Sewel convention, although given statutory recognition in section 28(8), remains a political convention not enforceable by the courts.

Practical importance

This was the first occasion in 19 years on which Law Officers had referred a Scottish Bill to the Supreme Court on competence grounds. The judgment illustrates the practical operation of supervening UK legislation: timing matters, and the UK Parliament’s ability to add an Act to Schedule 4 can transform what would otherwise have been a competent Bill into one that is in significant part ‘not law’. The decision matters to legislators and law officers in all three devolved jurisdictions, to constitutional lawyers, and to practitioners advising on the legal consequences of EU withdrawal in devolved areas.

Limits of the decision

The Court was careful to confine its reasoning to the statutory framework of the Scotland Act and the specific provisions before it. It expressly noted that different considerations may arise if further legislation is required to implement any future withdrawal agreement. The Court did not address the political questions about which institutions should exercise repatriated powers, recognising those as matters for elected representatives.

Verdict: The Court held: (i) the Scottish Bill as a whole was not outside legislative competence; (ii) section 17 was outside competence as it modified section 28(7) of the Scotland Act 1998; (iii) section 33 and Schedule 1 were not outside competence on the modification ground considered under Question 3; (iv) the impugned provisions were not outside competence for incompatibility with EU law, modification of the European Communities Act 1972, or breach of the rule of law; and (v) following enactment of the European Union (Withdrawal) Act 2018, the following provisions of the Scottish Bill were, at least in part, outside legislative competence: sections 2(2), 5, 7(2)(b) and (3), 8(2), 9A, 9B, 10(2), (3)(a) and (4)(a), 11, 13B, 14, 14A, 15, 16, 19(1), 22, 26A(6), 33(1), (2) and (3), and Schedule 1 paragraphs 11(a) and 16.

Source: The UK Withdrawal From The European Union (Legal Continuity) (Scotland) [2018] UKSC 64