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Brexit legislation in the Supreme Court: the United Kingdom at legal war with itself

Professor Sionaidh Douglas-Scott from Queen Mary's School of Law wrote an opinion piece for Prospect Magazine in which she wrote about the UK Supreme Court decision on the legality of the Scottish Continuity Bill adopted by the Scottish Parliament back in March, and its compatibility with the UK EU Withdrawal Act (EUWA) which became law in June 2018. Professor Douglas-Scott argues that devolved authorities feel their interests have not been taken seriously.

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This has been a very busy week for Brexit, even in these days when Brexit always dominates current affairs. This week’s shower has included a judgment from the European Court of Justice that Article 50 (which triggered the Brexit process) may be unilaterally revoked; the prime minister’s deferral (or abandonment?) of the parliamentary “meaningful vote” on her Withdrawal Agreement; her subsequent dash to European capitals in an unsuccessful attempt to alter that Agreement’s terms; closely followed by an unsuccessful attempt by some Tory MPs to depose her as leader.

In all of this excitement, some may have missed another highly important court judgment on a very significant aspect of Brexit. This was the judgment delivered this Thursday by the UK Supreme Court on the legality of the Scottish Continuity Bill adopted by the Scottish parliament back in March, and its compatibility with the UK EU Withdrawal Act (EUWA) which became law in June 2018. The UK government’s approach to Brexit has not found favour with the Scottish government, which considers that the needs of a Scotland which voted 62 per cent Remain have been ignored in the process. Hence, the Scottish parliament adopted its own approach in its Continuity Bill, some of which the Supreme Court has now found to be beyond the competence of the Scottish parliament, and therefore unable to come into effect.

But just why is this important? Whereas we are all familiar with the significance of Northern Ireland in Brexit matters—and the difficulty of squaring the circle of the UK leaving the EU without imposing a hard border through the island of Ireland, hence the problem of the “backstop”—the Scottish perspective has received much less attention in UK commentary. And yet, “this precious union,” to which Theresa May referred, consists of four nations, each with their own needs, and any Brexit settlement which ignores the position of one of those nations risks destabilising that union.

Devolution in the scope of EU membership

Devolution to Scotland, Wales and Northern Ireland has taken place within the scope of EU membership. To an extent perhaps not appreciated, the EU has provided overarching legal and governance frameworks for areas such as agriculture and fisheries, which are devolved matters. Holyrood, while being responsible for devolved matters under the devolution settlement, was also bound by regulation from the EU in those areas, rather than London. After Brexit, this must change, as powers formally held by the EU are “repatriated.”

The UK government, in its White Paper on what became the EU Withdrawal Act, committed to “intensive discussions with devolved administrations” about how devolved powers repatriated to the UK from the EU would be managed. Therefore, it was controversial that the UK EU Withdrawal Bill, when first published in July 2017, brought those powers directly back to Westminster (under the general label of “retained EU law”). Both Scottish and Welsh first ministers immediately labelled this “a naked power grab.” Under s 12 EUWA, devolved authorities cannot stop UK ministers from ultimately limiting those authorities’powers to amend retained EU law. This means the UK government can unilaterally limit devolved powers in these areas.

This is why the Scottish parliament refused to give its consent to the UK EU Withdrawal Bill and additionally passed its own UK Withdrawal from the EU (Legal Continuity) (Scotland) Act 2018by 95 to 32 votes in March 2018. The Scottish Continuity Bill shared a structure and approach with the EUWA, seeking to complement it, but diverged from it in some areas. For example, it did not exclude the Charter of Fundamental Rights from “retained EU law,” and would allow Scotland to keep pace with EU developments in future. It also, in s 17, required the consent of Scottish ministers, should UK ministers wish to alter or repeal retained EU law within devolved areas—a provision seen as crucial to protecting Scotland’s interests but notably lacking in the EUWA.

Legal challenges

The legal competence of this Scottish legislation was challenged by the UK government before the UK Supreme Court, making constitutional history as the first Scottish parliament legislation to be referred to the UK Supreme Court by the UK law officers under s 33 of the Scotland Act 1998. Notably, this referral occurred before the EUWA had been adopted and become law at Westminster. Until judgment was given in this case, the Scottish Continuity Bill remained in limbo and could not come into force.

I wrote for Prospect about the Supreme Court Continuity Bill litigation in July, and space precludes detailed consideration of the parties’ main arguments here, but a brief recap sets the scene.

The UK government’s case, presented by Lord Keen, Advocate General for Scotland, was that, given that the EUWA 2018 had now become law, the Scottish Continuity Bill lay outside of the Scottish parliament’s competence. This is underlined by the fact that the EUWA is now incorporated into an amended Scotland Act 1998 as a “protected enactment” (namely a statute that cannot be modified by devolved legislation) and much discussion in court centred on whether the Continuity Bill “modifies” UK legislation. Lord Wolffe, the Scottish Lord Advocate, argued that the Scottish parliament has competence to legislate regarding any matter not reserved to the UK and even if EU law ceases to apply in the UK, that does not affect this division of responsibility. EU powers should still return in line with the current division of powers under the devolution settlement. On the other hand, Lord Keen argued that these areas would revert to the UK government. But this, as pointed out in court, would create a new restriction on devolved authorities not previously in place, justifying claims that Brexit and the EUWA constitute a “power grab” from devolved nations.

So what did the Supreme Court decide? Notably, this was a unanimous judgment (from a Bench of seven, composed of Lady Hale (President of the Court) together with both Scottish Justices (Lord Hodge and Lord Reed, who is also the Deputy President of the Court) as well as Lord Kerr, the Northern Ireland judge, and Lord Lloyd Jones, who has Welsh roots. (Judgment had been expected in late September—it is hard to know why it has taken longer to deliver, but as Lady Hale had during the hearing in July described this case as “definitely one for the wet towels,” one may assume the Court found it to be highly complex and sensitive.)

The judgment itself is long and complicated, but the essential holding is this: the Court did not find all of the Continuity Bill to be outside of Holyrood’s competence, only section 17. However section 17 is a very important provision (remember, this is the section which prohibits UK ministers from regulating, ie repealing or amending, EU retained law on matters formerly within devolved competence, without consent of the Scottish government). The Court found s17 was outside of the Scottish parliament’s competence because it would modify both the Scotland Act 1998 and provisions in the EU Withdrawal Act itself.

Both sides claiming victory

What to make of this judgment? Both sides seem to have claimed victory. On the one hand, Michael Russell MSP, Scottish Constitutional Affairs Secretary, claimed “The Scottish government’s position has been vindicated by the Supreme Court judgment” but that sections of the Continuity Bill had been “thwarted as a result of steps taken by the UK government,” retrospectively introducing powers in the EUWA which, he said, limited the rights of MSPs to issue legislation regarding Brexit. On the other hand, the UK government Secretary of State for Scotland, David Mundell stated that “The Supreme Court has provided much-needed legal clarity that the Continuity Bill goes beyond the powers of the Scottish parliament” and that “This demonstrates clearly that it was the right thing for the UK government to refer the Bill to the court.”

However, the UK government’s case is perhaps undermined by the judgment itself, which unanimously found that “the whole of the Scottish Bill would not be outside the legislative competence of the Scottish parliament,” but, rather only s17, due to enactments in the EUWA. The obvious conclusion is that the Continuity Bill was largely competent when it was passed by the Scottish parliament in March. Note therefore this consequence: would it not be possible for the UK government to challenge any devolved legislation it disliked, and in the meantime, adopt its own “protected legislation,” providing rock solid protection against competing devolved legislation? Would this not thoroughly undermine the devolution settlement? One might argue Brexit is a special case, and unifying legislation is needed for all the UK, but with the UK’s four nations so clearly divided, imposing and enforcing a unified approach is a risky strategy that may backfire.

So what now? The Scottish government must decide how much of this Continuity legislation may be salvaged and pass into law, if indeed any of it. The Supreme Court helpfully considered, at the end of its judgment, other sections in the Bill that would also be outside competence as a result of the impact of the enactment of the EUWA on s17. These included the Scottish attempt to maintain the Charter of Fundamental Rights in law. Scotland has struck a different approach to human rights from England, setting up a first ministers’ advisory group which recently adopted recommendations on directions Scotland could take in the human rights field, with specific recommendations on Brexit.

Second, it is highly significant that the UK parliament enacted the EUWA in spite of the Scottish parliament’s refusal of legislative consent. Although such consent to UK wide legislation is not legally necessary, it is required by a constitutional convention (known as the “Sewel convention”). Indeed the Westminster parliament recently endorsed the Sewel convention in its own legislation, in the Scotland Act 1998, s28(8) (as inserted by Scotland Act 2016, s2), although Westminster failed clearly to give it express legally binding force. And in the famous Gina Miller case in 2017, the UK Supreme Court held that the Sewel convention is not legally enforceable. The willingness of the Westminster parliament to persist in enacting the EUWA without the Scottish parliament’s consent may be a striking illustration of Westminster parliamentary (or perhaps UK government?) sovereignty. Yet ignoring refusal of consent may have serious implications for the integrity and endurance of the United Kingdom, and will not be forgotten quickly in Scotland.

Third, and a rather different point—the Scottish Bill was not termed a Continuity Bill for nothing. It was intended, like the EUWA, to prepare the legal system for Brexit, to avoid huge gaps and ensure continuity in Scottish law. This in reality means transferring existing EU law into domestic law and amending or repealing it where necessary to make it workable in a post-Brexit Britain. But can this be accomplished in time for Brexit? The UK government’s progress in adopting delegated legislation (in the form of statutory instruments) preparing former EU laws for Brexit has already been slow, as well as worryingly untransparent and lacking in parliamentary scrutiny, (even taking the form of notorious Henry VIII powers, namely, the power to amend primary legislation by ministerial order). The Hansard Society statutory instruments dashboard sets out what has been achieved so far. If the Scottish authorities’ powers are curtailed by restrictions in the EUWA which limit their ability to prepare for Brexit, but mean they must instead wait for UK government ministers to act, then Scottish law may not be ready in time. As events this week have shown, Brexit may happen sooner than many would like, on 29 March in the form of a “Hard Brexit” by default, and it is unlikely that the UK legal system will be prepared. Scottish ministers will lack power to prepare in certain areas. This is a further problematic consequence of this lawsuit.

A disunited kingdom

As I noted, writing back in July, the United Kingdom is  a “disunited kingdom” and Brexit illustrates this very clearly. Devolved authorities feel their interests have not been taken seriously. In the EU referendum, the UK as whole voted to Leave. However, the vote was split by many things, including geographical location and cultural background. Sixty-two per cent of Scotland’s voting electorate voted to Remain, and the Scottish government remains opposed to Brexit. Yet, unlike federal states, devolved nations have no legal means of ensuring their different perspectives and needs are taken into account. These needs are real and often different from those of England, for example, Scotland’s greater need for immigrant labour. In other words, securing legal protection for devolved concerns is not merely a covert attempt to gain independence. Devolved authorities have no formal role in the Article 50 negotiations, and their amendments failed to pass when the EUWA was debated in Westminster. A Continuity Bill was pursued as a legal mechanism to protect devolved constitutional interests. When that also fails, legal routes of opposing their exclusion from the EU withdrawal process appear exhausted. At present, Brexit brings these issues into sharp focus, without, however, suggesting any solutions. When (and if?) Brexit is finally concluded, will the United Kingdom still exist?

This opinion piece was originally published in Prospect Magazine on 14 December 2018.

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