A Brexit case of great complexity and even greater importance

The Supreme Court must decide what Brexit means for the devolution settlement

July 27, 2018
The Supreme Court building in Parliament Square. Photo: Fiona Hanson/PA Wire/PA Images
The Supreme Court building in Parliament Square. Photo: Fiona Hanson/PA Wire/PA Images

A very important case—which has not received the media attention it merits—was heard this week in the UK Supreme Court. It concerns a challenge brought by the UK government to the "Scottish Continuity Bill" adopted by Holyrood earlier this year.

This Continuity Bill is designed to prepare the Scots legal system for Brexit, but the UK government argues it conflicts with the UK EU Withdrawal Act (EUWA) recently granted royal assent, and so falls outside Holyrood’s competence.

In fact, this case raises not only the vexed issue of Brexit, but the equally vexed issues of devolution and the strained relationship between Scottish and UK governments, which in turn ultimately raises a question mark over the continued existence of the United Kingdom. Ignore it at your peril.

This situation has arisen in the following way. Earlier this year, the Scottish parliament asserted that the Westminster EU Withdrawal Bill (as it then was) was incompatible with the devolution settlement and so refused (by a significant majority) to give legislative consent to it. Such consent is required under the “Sewel Convention,” which normally requires the consent of devolved legislatures before Westminster legislation touching on their powers can be adopted. Nonetheless, Westminster pressed on, and the EUWA became law on 26th June 2018. This is the first time that Westminster legislation has been adopted without the Scottish parliament’s consent.

The UK government intends that, via the EUWA, powers currently controlled in Brussels will be repatriated to Britain, becoming part of UK law unless they are no longer needed, in which case they will be repealed. However, under the Act’s scheme, even powers in devolved areas will return to Whitehall first, and UK ministers will then decide if they should return to devolved legislatures or become part of UK-wide common frameworks. For the Scottish government, this is a “power grab” and violates devolution. Consequently, the Scottish government adopted the “Continuity Bill” to prepare for Brexit and preserve its devolved powers from appropriation by the UK government.

The Scottish Continuity Bill was adopted by the Scottish parliament in March this year by 95 votes to 32. The Bill shares its structure and approach with the EUWA, thus seeking to complement and not contradict it, but does diverge from the EUWA approach in some areas. For example, it does not exclude the Charter of Fundamental Rights, and it allows Scotland to keep pace with European Union developments in future. It also requires 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 (earlier attempts to secure such a consent mechanism by amendment to the EUWA during its passage through Westminster failed) and a contentious point in the Court proceedings.

“This case ultimately raises a question mark over the continued existence of the United Kingdom”
Not content to let things rest, in April 2018 the UK government launched legal proceedings, arguing the Scottish Bill is incompatible with both the EUWA and the Scotland Act 1998, because (notwithstanding claims that the Bill concerns only devolved areas) it legislates on matters reserved to the UK overall. Although the Bill was adopted by the Scottish parliament in March this year, it cannot receive Royal Assent and come into force until the case has been decided by the Court, so it remains in limbo.

This is undoubtedly an important case. That the UK government (represented by Lord Keen of Elie, the UK’s Advocate General for Scotland, and former Chair of the Scottish Conservatives) should be suing the Scottish government (represented by the Scottish Lord Advocate, Lord Wolffe) in this way illustrates the impact of Brexit on the devolution settlement.

There were also interventions from Wales and Northern Ireland, basically supporting the Scottish case. Although in this case (unlike in Miller, that more famous UK Supreme Court case concerning parliament’s role in Brexit) the UK Supreme Court did not sit in plenary but rather as a Bench of seven, the composition of this Bench is highly salient: it includes 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. So devolution is well represented—although whether that is likely to render a result more favourable to Scotland cannot be guaranteed. In the Miller case, the Supreme Court did not show itself particularly sympathetic to devolved arguments, holding the Sewel convention lacks legal force.

Although this was a relatively short hearing, lasting only two days, the arguments were frequently technical, perhaps masking the crucially important points at issue. This comment makes no attempt to repeat or explain them all, instead highlighting the most important features of the case.

First, it is important to note that, unlike Westminster, the Scottish parliament does not have unlimited legislative competence, or, as Lord Keen put it (much to the annoyance of many Scots) it, unlike Westminster, is not a “sovereign parliament.” Its powers are circumscribed by law (the Scotland Act 1998 and its successors) and Holyrood legislation must not intrude on matters reserved to the UK (which are set out in the Scotland Act) nor adopt legislation incompatible with EU law. As the Scottish Bill is not intended to come into effect until after the UK has left the EU, when EU law will no longer apply, it might have been thought impossible for it to contravene EU law, but nonetheless, this still proved contentious in the case. However, and this is important, Scottish devolution rests on a “reserved powers” model, meaning any area not specifically reserved to the UK in the Scotland Act is taken to be devolved, and thus within Scotland’s competence.

Lord Keen, arguing for the UK government, opened the case. The UK government’s written submissions were not posted until the first day of the hearing (one hopes the other parties had more notice!) and included a “supplementary case,” ie a separate and additional argument, which it soon became clear lay at the heart of the UK government’s case.

This “supplementary” argument was that, as the UK EUWA 2018 has now become law, this renders the Scottish Continuity Bill beyond Holyrood’s competence. Indeed, the EUWA has been specifically incorporated into an amended Scotland Act 1998 as a “protected enactment” (these are specific statutes that may not be modified by devolved legislation, an incorporation consciously accomplished by a specific provision in the EUWA and voted for in Westminster) and much discussion in court centred on whether the Continuity Bill “modifies” UK legislation. Lord Keen argued the Scottish Bill is an act of legislative disharmony, fundamentally undermining the core purpose of the EUWA, which he argued is to provide a common approach across the UK. Undoubtedly, both the Continuity Bill and the EUWA share certain aims—preparing the country for a post Brexit legal system—and the Scottish Bill follows the scheme of the EUWA by and large, although departs from it in certain areas.

Now there may be some arguments in favour of a UK wide approach, but notice what is going on here. By arguing the Scottish Bill modifies the “protected” EUWA impermissibly, the Advocate General has circumvented the question of whether the Scottish Bill was within competence when adopted by Holyrood in March 2018, before the UK government lodged its challenge and when the EUWA was not yet in force. Arguably, this earlier date is the salient time for determination of legislative competence. If Lord Keen’s argument were correct, would it not be possible for the UK government to challenge any Holyrood legislation it disliked, and in the meantime (because even with expedited hearings, it takes several months for cases to come before the Supreme Court), pass its own “protected legislation,” providing cast iron protection against competing devolved legislation? Would this not thoroughly undermine the devolution settlement?

One might argue that it was not inevitable that the EUWA would be in force before the case was heard (especially given that Act’s difficult passage through Westminster), although if determination of the case does rest on which Act is legally adopted first, this renders the matter almost laughably dependent on timing, rather than on a principled issue of division of powers within a devolved state.

However, to be sure, the Advocate General had other arguments, many of a technical nature, which were also submitted. In particular, he argued that the Scottish Bill’s provisions fell within the field of international relations, a reserved matter, and so could not be within Holyrood’s competence. But as the Continuity Bill is about preparing domestic legislation for Brexit, it would surely take a very broad, even exaggerated, concept of international relations to cover its scope, as pointed out by Lord Wolffe, and by the intervenors for Wales and Northern Ireland. Indeed, such a broad definition renders devolution pointless, as virtually any legislation might be argued as having some bearing on international relations (ie food standards might easily intrude into this area, given sensitivity to “chlorinated chicken” in the context of a putative UK/US trade deal) and thus considered outside competence.

At base, this case was argued over very different views of the devolution settlement. The Scottish Lord Advocate argued that the Scottish parliament has competence to legislate in relation to any matter not reserved to the UK. He argued that 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 policy responsibilities. On the other hand, the Advocate General argued that these areas would revert to the UK government. But this, as pointed out in court, would be a new restriction not previously in place, justifying claims that Brexit and the EUWA constitute a “power grab” from devolved nations.
“The UK government has acted unconstitutionally in proceeding without the Scottish parliament’s consent”
The case concluded on Wednesday afternoon, with Lady Hale commenting that “This is definitely one for the wet towels, so we'll go away and apply them,” which perhaps gives a flavour of the arguments. Judgement will probably not be given until late September, by which time we may (or may not) have more of an idea what sort of withdrawal agreement and Brexit deal we will actually get.

So, what conclusions may we draw from this undoubtedly important case? First, what if (contrary to what seem to be most expectations) the UK were to lose the case? There exist precedents in which Welsh legislation has been challenged in the UK Supreme Court and upheld. To be sure, given the previous different structure of Welsh devolution legislation, it is not clear how relevant these Welsh cases may prove. But they do set a precedent of sorts.

Upholding the legality of a Scottish Continuity Act could lead to different regimes in Scotland and the rest of the UK regarding retained EU law. Scotland already has a different legal system from England, and to date, within its devolved competences, has been free to act according to its own policies. However, this would result in a complex position regarding retained EU law. The EUWA is already highly complicated and obscure. A devolved Continuity Act would complicate this situation still further. Alternatively, some fear that, should the UK Supreme Court rule against it, the UK government would press on regardless, asserting Westminster’s overall sovereignty, and even pass legislation repealing the Scottish Continuity law—undoubtedly an unhappy state of affairs for both intra UK governmental relations and the rule of law.

But, whatever the merits of the case may be, there are real doubts that Scotland will win, not least from supporters of independence. And what then? The UK is, in a familiar phrase, a “disunited kingdom” and Brexit illustrates this very clearly. In the EU referendum, the UK as whole voted to leave. However, 62 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 rights to protect their differing perspectives. They have no formal role in Article 50 negotiations, and were not able to carry their desired amendments when the EUWA went through Westminster. There is a strong feeling that devolved interests are not taken seriously in the Brexit process, a feeling hardly assuaged by the acerbic approach of the UK government—see for example, Lord Keen’s disparagingly restrictive view of the scope of the Sewel convention, in contrast to the previous approach of the UK government on this matter. (The narrower the scope of the Sewel convention, the less need for Westminster to obtain the Scottish parliament’s consent before legislating). A Continuity Bill is one of the few legal mechanisms they possess to protect their constitutional interests.

And we should not forget that, even if the Supreme Court holds the Continuity Bill to be outside Holyrood’s competence, the UK government has still acted unconstitutionally in proceeding with the EUWA in the absence of the Scottish parliament’s consent. Such unconstitutional behaviour is no small thing, and will not be forgotten (nor perhaps forgiven) in Scotland.

If there is no apparent legal or constitutional mechanism for devolved nations to protect their interests, what price then another Scottish independence referendum? It seems Brexit not only threatens economic prospectshuman rights, and not least Northern Ireland and the Irish peace process (an even more problematic issue than Scotland), but the very integrity of the United Kingdom itself.