The Supreme Court was asked whether the Scottish Parliament could pass its own Bill to keep law operating in devolved areas after the United Kingdom left the European Union. It held that the Bill as a whole did not enter the reserved field of relations with the EU, and that the Parliament could legislate in advance for withdrawal. A requirement for Scottish ministers’ consent to certain United Kingdom subordinate legislation, and provisions that would alter the later European Union (Withdrawal) Act 2018, would nevertheless be outside its powers.
The Attorney General and the Advocate General for Scotland referred the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill to the Supreme Court under section 33 of the Scotland Act 1998. The question was whether the Bill, passed by the Scottish Parliament on 21 March 2018 but not yet given Royal Assent, would be within that Parliament’s legislative competence. Lady Hale, Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Lloyd-Jones gave one judgment on 13 December 2018. They emphasised that the Court was not deciding which institution ought, as a matter of policy, to exercise powers returning from the EU.
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Why two continuity Bills existed
On 29 March 2017 the United Kingdom notified its decision to withdraw under article 50 of the Treaty on European Union. Subject to a Court of Justice ruling on whether that notice could be revoked, a withdrawal agreement, or unanimous agreement to extend time, membership was due to end on 29 March 2019. EU law would then cease to bind the United Kingdom. The United Kingdom Government introduced a Bill on 13 July 2017 to repeal the European Communities Act 1972 and preserve legal continuity. It became the European Union (Withdrawal) Act 2018 on 26 June 2018.
After amendments supported by the Scottish Government were defeated, John Swinney MSP introduced the Scottish Bill on 27 February 2018. The Scottish Government said it was within competence. The Presiding Officer, Kenneth Macintosh MSP, disagreed: the Bill would be passed while EU law still applied, and postponing its effect did not, in his view, cure that. The Lord Advocate defended the Bill. A similar Welsh Bill prompted a reference, but that reference was withdrawn after an agreement on 24 April 2018. On 15 May 2018 the Scottish Parliament refused legislative consent to the United Kingdom Bill. The Court recorded that this vote did not affect the legal validity of the 2018 Act, although the recognised Sewel convention normally calls for such consent on devolved matters. This was the first challenge by United Kingdom Law Officers to a Scottish Bill in the 19 years since the Scottish Parliament began work.
The limits that mattered
The Scottish Parliament has wide law-making power, but it is not sovereign. Section 29 of the Scotland Act makes a provision outside competence if, among other things, it relates to a reserved matter, breaches Schedule 4, or is incompatible with EU law. Relations with the EU are reserved, although observing and implementing EU obligations is not. Schedule 4 protects specified enactments, including the Scotland Act itself, from modification. Modification includes express amendment or repeal, but also a later provision that implicitly amends, disapplies or repeals a protected rule, or conflicts with that rule continuing unqualified. Merely adding another rule in the same field is not enough. A reference under section 33 tests only these statutory limits. Complaints about the constitutional framework or the rule of law were not independent grounds in these proceedings.
The Bill did not relate to relations with the EU
The Bill’s stated purpose was to make provision for prospective withdrawal and to keep Scots law working, so far as devolved, on and after withdrawal. It was not a measure for observing or implementing EU obligations: if valid, it would affect Scots law only after withdrawal, when those obligations had ended. Replacement rules might resemble former EU rules, but their source would be domestic. Nor did the Bill affect ministers’ power to negotiate or conduct relations with the EU. It regulated only the domestic consequences, in devolved areas, of EU law ceasing to be a source of law. Legal untidiness or political inconvenience was irrelevant to competence. The Court therefore answered that the Bill as a whole was not outside competence for relating to reserved matters. It left for later any legislation needed to implement a future withdrawal agreement or later relations with the EU.
Scottish consent could not qualify Parliament’s continuing power
Section 17 would have applied to certain subordinate legislation made by a Minister of the Crown, or another person other than the Scottish Ministers, under a power conferred or modified by a future Act of the United Kingdom Parliament. If that legislation contained devolved provision affecting retained devolved EU law, it would have had no effect unless the Scottish Ministers had consented. The Court recorded that this was intended to obtain, through Scottish legislation, a consent requirement that amendments to the United Kingdom Bill had not secured.
Section 28(7) of the Scotland Act preserves the United Kingdom Parliament’s power to make laws for Scotland, including laws authorising subordinate legislation. Schedule 4 prevents the Scottish Parliament from modifying that provision. A law is not meaningfully made if it has no effect unless Scottish ministers consent. Section 17 would therefore have to be treated as qualifying section 28(7). It was no answer that Westminster could later disapply or repeal it: an incompetent provision is not law at all. The Court found it unnecessary to decide whether section 17 also modified section 63(1).
Section 17 did not, however, relate to the separate reserved matter of the United Kingdom Parliament. In its constitutional context, that reservation covers fundamental matters, including parliamentary sovereignty, rather than protecting every Westminster statute from Scottish legislation. Pursuing a policy Westminster had rejected did not by itself impinge on Parliament. Parliament would have remained able to amend, disapply or repeal section 17.
Repealing spent EU references was competent on that ground
Section 33 and Schedule 1 would have repealed references in the Scotland Act to EU law, European Parliament elections, references to the Court of Justice and related obligations, on the basis that they would be spent after withdrawal. The Scottish Parliament cannot generally rewrite the Scotland Act, but Schedule 4 permits it to repeal a spent enactment. The Court held that spent means having no continuing legal effect, not merely being literally meaningless. The relevant EU constraints would cease to have effect on withdrawal.
Those repeals would not themselves have been incompatible with EU law, so another postponement provision did not delay them. Commencement was nevertheless controlled: section 33 would come into force only on a day appointed by the Scottish Ministers, and they could not lawfully appoint a day before the provisions were spent. If necessary, the Court would read that power narrowly so that it could be used only after withdrawal. The Court distinguished an earlier case about provisions that were incompatible whenever brought into force. On the Scotland Act ground alone, section 33 and Schedule 1 were therefore not outside competence. That did not decide the separate effect of the 2018 Act.
The Parliament could legislate ahead of withdrawal
The United Kingdom Law Officers challenged provisions that would retain directly applicable EU law, disapply EU principles, or allow Scottish ministers to modify retained devolved EU law, together with provisions dependent on them. They said competence had to be judged as if the provisions took effect when the Bill was passed. The Court rejected that submission because of the Bill’s central timing rule: so far as a provision would be incompatible with EU law if effective too soon, it was to have no effect until the relevant EU law ceased to have effect in Scots law because of withdrawal. Without legal effect, there was no incompatibility with EU law and no modification of section 2(1) of the European Communities Act 1972, whose repeal would accompany withdrawal. The section 33 jurisdiction did not extend to complaints about drafting quality or possible future amendments. The article 50 notice meant that, unless the timetable was politically changed, the EU-law restriction on Scottish competence was due to end on 29 March 2019. Preparing for that while respecting EU law until then breached no principle in the Scotland Act.
Competence was judged at the date of the decision
The Attorney General for Northern Ireland argued that both the Bill and the Scotland Act had to be examined as they stood on 21 March 2018. The Court disagreed. Section 33 asks whether a Bill would be within competence. A Bill becomes an Act only after Royal Assent, and the Court assesses it as if it received Assent at the date of the decision. The 2018 Act, passed after the Scottish Bill, had added itself to the enactments protected by Schedule 4. That change could alter the answer.
Some provisions would modify the 2018 Act
Protecting the 2018 Act was not the same as reserving its whole subject matter. Provisions that merely replicated it were not modifications. A conflict with its unqualified continuation was. The Court accepted that the following would, at least in part, be outside competence.
Section 2(2) would preserve enactments relating otherwise to the EU or the EEA without excluding the 1972 Act, unlike the corresponding United Kingdom provision. Because only specified provisions of the 1972 Act were protected, the Scottish provision could maintain its remaining provisions despite the United Kingdom repeal. Section 5 would keep the Charter of Fundamental Rights and the general principles of EU law in Scots law, contrary to their exclusion by the 2018 Act. The Lord Advocate conceded that this was a modification.
Section 7(1), abolishing challenges to retained devolved EU law on the ground that an EU instrument was invalid immediately before exit day, matched the United Kingdom provision. Sections 7(2)(b) and 7(3) did not: they allowed Scottish ministers to create exceptions and preserved rights of action accruing before exit day. Sections 9A and 9B, providing scrutiny and consultation for those regulations, fell with them. Section 8(1) matched the abolition of damages under the rule in Francovich, but section 8(2) preserved pre-exit rights of action and therefore modified the 2018 Act. The Lord Advocate conceded these points.
Section 10(2) converted a power to have regard to post-exit European Court case law into a duty. Section 10(3)(a) omitted retained general principles from the interpretation rules. Section 10(4)(a) would have allowed Scottish ministers to set those rules aside by regulations. Section 11 gave Scottish ministers a deficiency-correcting power without the conditions and restrictions imposed on devolved authorities by Schedule 2 to the 2018 Act. A parallel power was still a modification. New section 30A, allowing a Minister of the Crown to restrict modifications of retained EU law, did not change that: until such a restriction was made, section 11 would operate free of the United Kingdom conditions. Provisions ancillary to section 11 were outside competence only to that extent, namely the relevant parts of sections 13B, 14, 14A, 15, 16 and 19(1), and the reference to section 11 in section 22.
Section 26A(6) required environmental principles derived from article 191(2) of the Treaty on the Functioning of the European Union to be interpreted consistently with the European Court’s interpretation from time to time. That conflicted with the rule that a court is not bound by European Court principles or decisions given on or after exit day. Finally, section 33(1), (2) and (3), and Schedule 1 paragraphs 11(a) and 16, would repeal EU wording in the Scotland Act without inserting the replacement wording required by the 2018 Act. They would therefore disapply that Act. The Court did not treat every other provision of the Scottish Bill as invalid.
Verdict: The Court unanimously held that the Bill as a whole fell within devolved subject matter. Section 17 exceeded competence because it would modify section 28(7) of the Scotland Act. The intervening UK Withdrawal Act also put parts of several provisions beyond competence. The Bill could not proceed to Royal Assent in that form.
