The Supreme Court must decide what Brexit means for the devolution settlementby Sionaidh Douglas-Scott / July 27, 2018 / Leave a comment
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will be repatriated to Britain, becoming part of UK law unless they are no longer needed, in which case they will be repealed.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…