Victory For The Scottish Government In The Supreme Court

The Supreme Court this morning delivered its judgement on a claim by the UK Attorney General that the Scottish Parliament acted outwith its “legislative competence” when it passed The European Union (Legal Continuity) (Scotland) Bill back in March this year.

The case was heard before Justices Lady Hale (President), Lord Reed (Deputy President), Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Lloyd-Jones in July and it has taken 5 months for a judgement to be arrived at.

For the main part the court found in favour of the Scottish Government:

“The Supreme Court gives a unanimous judgment. It finds that the whole of the Scottish Bill would not be outside the legislative competence of the Scottish Parliament. However, section 17 would be outside the legislative competence of the Parliament because it would modify the Scotland Act and, at least in part, the sections referred to in the final paragraph below would be outside the competence of the Scottish Parliament because they would modify provisions of the UK Withdrawal Act.”

The court addressed four key questions:

1) Is the Scottish Bill as a whole outside the legislative competence of the Scottish Parliament?

The Justices ruled that the bill as a whole was not outside the legislative competence of the Scottish Parliament as it does not have more than a loose or consequential connection with a reserved matter, namely that it does not relate specifically to relations with the EU but rather it seeks to regulate certain legal consequences of EU law ceasing to be a source of domestic law.

2) Is section 17 of the Scottish Bill outside the legislative competence of the Scottish Parliament?

The court found that section 17 of the bill was outside the legislative competence of the Scottish Parliament. The Scottish Parliament does not have the power to amend The Scotland Act. Section 28(7) of the Scotland Act provides that the UK Parliament has unqualified legislative power in Scotland and Section 17 of the Scottish Bill would be inconsistent with that (essentially the UK Parliament has the power to authorise Ministers to make subordinate legislation, but the effect of section 17 would be to make the legal effect of such subordinate legislation conditional upon the consent of the Scottish Ministers).

3) Are section 33 of and Schedule 1 to the Scottish Bill outside the legislative competence of the Scottish Parliament?

This is a complicated one and relates to an an exception to the rule that the Scottish Parliament does not have legislative competence to modify the Scotland Act, which allows the Parliament to repeal any enactment which is spent. Since Scottish Ministers would not be able to bring section 33 into force until after the UK has completed its withdrawal from the EU, by which time the provisions that would be repealed by section 33 would indeed be spent, the court ruled that this also was not outside the legislative competence of the Scottish Parliament.

4) Are various provisions of the Scottish Bill outside the legislative competence of the Scottish Parliament because they (i) are incompatible with EU law, (ii) modify section 2(1) of the European Communities Act 1972 (‘ECA’), and/or (iii) are contrary to the rule of law?

Again since none of the provisions that are challenged here take effect until after the UK has completed its withdrawal and by extension will have ceased to have effect the court ruled that the UK Government’s challenge was misconceived under the rule of law.

I must point out that this is really only a technical or symbolic victory because since the case was raised the UK Government passed it’s European Union (Withdrawal) Bill and as part of that process the Act was specifically added to The Scotland Act as a “Protected Provision” which means that although it is not a reserved matter the Scottish Government is powerless to make changes to it.

Where does this leave us going forward?

Hopefully this will become clearer following a Ministerial Statement in the Holyrood Chamber at 2pm this afternoon (Dec 13th).

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