Alan S. Reid, Senior Lecturer in Law,
Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.
The
modern concept of Devolution in the United Kingdom was devised, created and
implemented in the general context and expectation of continued UK membership
of the European Union. Scotland, Wales and Northern Ireland were all granted
various levels of legislative and executive autonomy under a set of
constitutional statutes of the UK Parliament (Scotland Act 1998
(SA 1998), Government
of Wales Act 1998 (GOWA 1998)(now the Government of
Wales Act 2006 (GOWA 2006)) and Northern Ireland
Act 1998 (NIA 1998)). These laws created a certain level of asymmetry in
the scope and range of powers exercisable by the nations of the United Kingdom,
however they all shared one common feature - devolved legislative and executive
powers could only be exercised in a way that is not incompatible with the UK's
international obligations, particularly as regards the law of the European
Union (Sections 29(2)(d) and 57(2) SA1998, Sections 58A and 108A(2)(e) GOWA
2006 and Sections 6(2)(d) and 24(1)(b) NIA 1998).
Background to Devolution
Scotland's
devolution arrangements were always predicated upon a reserved model of
devolution. Such a system provides that
the Scottish Parliament is free to legislate on any residual matter, other than
those matters that are explicitly retained by the UK Parliament. The matters
that are explicitly retained by the UK are set out in section 29(2)
of the 1998 Act. This provides that the Scottish Parliament cannot pass laws
that apply extraterritorially, relate to reserved matters, attempt to change
the terms of certain Acts of the UK Parliament (including the European
Communities Act 1972), are incompatible with the European Convention of Human
Rights or EU law or are an attempt to remove the Lord Advocate as the head of
criminal prosecutions and the investigation of deaths.
Notwithstanding
the relative clarity of these terms, it has been judicially noted that there is
of course some inevitable degree of overlap between the concepts (Martin
v HM Advocate 2010 SLT 412, Lord Hope of Craighead at para 11 and Imperial
Tobacco Ltd, Petitioner [2010] CSOH 134). Thus, the system of devolution
itself sets out a detailed process for determining whether a proposed Scottish
law is within or outwith the legislative competence of the Scottish Parliament.
More generally, the notion of devolution presupposes that the UK Parliament, as
the only sovereign Parliament for the whole of the UK, is competent to
legislate in any matter, devolved or reserved (Section 28(7)
SA 1998).
The
Devolution settlement for Scotland and Wales, at inception, was always subject
to the, admittedly theoretical, possibility that it could be simply reversed by
a subsequent Act of the UK Parliament. However, both the Scotland
Act 2016 and Wales Act
2017 provide for a more permanent arrangement, whereby the Scottish
Parliament, Scottish Government, Welsh Assembly and Welsh Government are now
treated as permanent features of the constitutional landscape of the United
Kingdom (Section
63A SA 1998). This strengthening of the centrality of devolution to the
fundamental tenets of the UK constitution also resulted in significant changes
to the interplay between the Scottish Parliament and the UK Parliament. The
Scotland Act 2016 now provides that the Sewel Convention, the constitutional
convention that the UK Parliament will not normally legislate for Scotland in
devolved matters without the consent of the Scottish Parliament, is now
statutorily recognised (see Section
28(8) SA 1998).
In
the two decades of Scottish devolution, hundreds of Sewel conventions have been
granted by the Scottish Parliament.
The slim
UK vote to leave the European Union on 23rd June 2016, poses significant issues
and implications for Scottish devolution. The Scottish population
overwhelmingly voted to remain in the EU (62%),
however the UK Government is committed to leaving the EU on terms that mean the
UK no longer accepts the jurisdiction of the ECJ, leaves the EU Single Market
and the EU Customs Union and ends payments to the EU budget. The Scottish
Government was therefore placed in an impossible position - it had to respect
and defend the democratic will of the Scottish people to stay in the EU and its
economic and legal structures, within the confines of the overall desire of the
entire UK to leave the EU.
The
Scottish Government, from the immediate aftermath of the EU Referendum, was
committed to engaging with the UK Government in reaching an acceptable
compromise on the detailed terms of the UK's exit from the European Union.
However, it later became clear that the terms of the UK's proposed Great Repeal
Bill, and thereafter the EU Withdrawal Bill, were unacceptable to the Scottish
Government. As a consequence, the Scottish Government intimated that it was likely
the Scottish Parliament would be minded to refuse a Legislative Consent Motion
(LCM) authorising the UK Parliament to enact legislation providing for the UK's
exit from the EU. Such a refusal would have limited practical legal effect,
since the UK Parliament has unlimited power to legislate and in particular, the
Scottish Government has no power to enforce any refusal of an LCM against the
UK Parliament (Miller v S. of S. for
Exiting the EU [2017] UKSC 5],
discussed here).
Nevertheless, the refusal would have significant political effect.
The
Scottish Parliament refused to grant the LCM and the Scottish Government then pressed
ahead with plans to create its own withdrawal legislation, in order to avoid a
legal vacuum in the devolved statute book after the UK's exit from the EU. The
Scottish Government put forward its alternative legislative proposal, the UK
Withdrawal from the European Union (Legal Continuity) Bill
2018, on the 27th of February 2018. It was presented as emergency
legislation before the Scottish Parliament and as such, the UK Government was
not notified of the proposal, as is the normal convention.
As the
law currently stands, Acts of the Scottish Parliament, as laws of a devolved
legislature, do not enjoy an automatic presumption of legality, in
contradistinction to the position of Acts of the UK Parliament (Imperial Tobacco
Ltd v Lord Advocate 2013 SC (UKSC) 153 as per Lord Hope of Craighead). As
such, legislative proposals of the Scottish Parliament are vulnerable to being
attacked as being outwith the competence of the Scottish Parliament under two
main lines of attack.
Firstly,
Bills of the Scottish Parliament can be attacked as being effectively
unconstitutional during the four week gestation period of a bill between its
approval in the Scottish Parliament and being given Royal Assent (Section 32
SA 1998). The Advocate General for Scotland, the Lord Advocate or the Attorney
General are entitled to challenge the legality of a Bill of the Scottish
Parliament before the Supreme Court (Section 33
SA 1998).
Secondly,
actual Acts of the Scottish Parliament are similarly susceptible to attack as
being outwith the legislative competence of the Scottish Parliament before the
Supreme Court (Section 29 SA 1998; AXA v Lord
Advocate [2011] UKSC 46).
The UK
Withdrawal from the European Union (Legal Continuity) Bill
2018 was criticised by no less a figure than the Presiding Officer of the
Scottish Parliament itself. The Bill attempts to remove the limitation on legislative
power set out in section 29 of the Scotland Act 1998 as regards EU law. The
Bill also purports to bring EU law into the devolved statute book by creating
Retained (Devolved) EU law and gives the Scottish Minsters powers to amend such
law where this is necessary to make the law coherent and consistent. The Bill
also attempts to require that UK Ministers do not change certain aspects of
Retained EU law without the consent of the Scottish Ministers.
When
the UK leaves the EU, currently scheduled as the 29th of March 2019 under the
UK Parliament's EU
(Withdrawal) Act 2018 (Section 20), the provisions of the Scotland Act 1998
limiting the power of the Scottish Parliament and Government to make law and
perform executive functions respectively, would be rendered nugatory. However,
the Presiding Officer considered that this was a step too far: the Scottish
Parliament will be fully subject to the limitation set out in section 29 until
Exit Day. The Attorney General and Advocate General for Scotland completely
agreed with this view and accordingly utilised their right to petition the
Supreme Court for a judgment on the legality of the Scottish Parliament's
Continuity Bill (Reference
on UK Withdrawal from the European Union (Legal Continuity) Bill 2018).
Conversely,
the Lord Advocate takes the diametrically opposite view, alongside the Attorney
General for Northern Ireland and the Counsel General to the Welsh Government.
These three legal officers consider that the Bill was squarely within the
competence of the Scottish Parliament, notwithstanding the reservations
expressed by the Parliament's Presiding Officer.
The
Supreme Court, in a seven judge configuration, including of course the two
Scottish justices (Lord Reed and Lord Hodge) heard the case on the 24th and 25th
of July 2018 and delivered its judgment
on the 13th of December 2018.
The
challenge is without precedent: it is the first time, in the two decades of
operation of the Scottish Parliament that both the Presiding Officer has
questioned the competence of a Bill passed by the Scottish Parliament and the
UK Legal Officers have exercised their legal right to send a question on the
competence of a Scottish Parliament Bill to the Supreme Court.
The
novelty of the case has thrown up some interesting legal questions.
First,
it has to be remembered that this action before the Supreme Court is unique. It
is not analogous to the many legal challenges that have been taken to the
Supreme Court about the legality of devolved legislation (eg AXA v Lord Advocate [2011] UKSC 46) as
opposed to bills. In the AXA case,
Lord Hope at p. 142, stated that;
“in
principle Acts of the Scottish Parliament are amenable to the supervisory
jurisdiction of the Court of Session at common law".
This
judgment is authority for the proposition that Acts of the Scottish Parliament
are vulnerable to challenge under the limits to Scottish Parliament law making
set out in section 29 of the Scotland Act 1998 and judicial review principles
of the common law. However, he then went on to qualify this statement by noting
that not all of the generally available judicial review grounds of challenge
would be available to challenge the provisions of a public body such as Acts made
by the Scottish Parliament since the Scottish Parliament was a democratically
elected body with law making and tax raising powers and as such its laws would
enjoy the highest legal authority. Thus,
challenges to laws of the Scottish Parliament could not ordinarily be taken on
grounds of irrationality, unreasonableness or arbitrariness. Indeed, Lord Hope
stated that the common law grounds of challenge could only ever be contemplated
in extreme circumstances, such as where a law purported to violate the rule of
law by closing off judicial review or the courts' ability to protect an
individual's rights.
Although
factually and legally correct, and intensely interesting, the Lord Advocate swiftly
dispensed with this line of argumentation. These options for review are only
appropriate for challenges taken against laws made by the Scottish Parliament. Legislative
proposals before the Scottish Parliament can only be challenged in the 4 week
window of opportunity according to the exacting terms of section 33 of the
Scotland Act 1998. As such, it is argued that the question before the Supreme
Court is not a nuanced one akin to cases seeking annulment of laws based on
rule of law conceptions such as irrationality and arbitrariness in the exercise
of powers stated in that law. Rather, it was submitted by the Lord Advocate
that the question was simpler and binary in nature: is the Bill within the
legislative competence of the Scottish Parliament, by not encroaching upon
matters properly addressed by the UK Parliament or not?
If
the question is indeed binary as suggested, then the substantive question turns
on the notion of international relations and EU law as international law.
Again, here the question may not be as complicated as argued by the UK Law
Officers. The UK Law Officers argue that the Bill is not within legislative
competence since the Bill cuts across fundamental sovereign powers only
exercisable by the UK Parliament, namely the exercise of international
relations. Succour for this line of argumentation comes from the Miller case, whereby the Supreme Court
conformed that the triggering of Article 50 TEU fell squarely within the legal
power of the sovereign Parliament of the UK (Miller v S. of S. for Exiting the EU [2017] UKSC 5).
However, again here there is possibly a misunderstanding of the scope and nature
of the powers purportedly being exercised in the Scottish Parliament's Bill. Of
course, the contested Bill is concerned with EU law and the Scotland Act
clearly prohibits the Scottish Parliament from acting in the international
plane or to do anything interfering with the sovereign power of the UK
Government and UK Parliament to both conduct relations with (and within) the EU
institutions and to change UK law, notably the European Communities Act 1972,
to comply with changed EU law obligations (such as additional Treaty
obligations).
However,
the Scotland Act is also concerned with a completely separate, internal aspect
of EU law: the Scottish Parliament and Government cannot make law or perform
executive functions in violation of EU law. This provision is actually designed
to protect the UK from the legal consequences of devolved institutions acting,
to borrow a delictual and tortious phrase, on a frolic of their own which will
impute liability upwards to the UK. This limitation on power set out in section
29 of the Scotland Act 1998 is vital and core to the very essence of the
Scottish Parliament's function: an overwhelming majority of legislative
activity in the Scottish Parliament is directed at complying with EU law and
giving effect to EU law. At the inception of devolution at the tail end of the
last century, the Scottish Parliament and Scottish Government were given power
over any areas of competence not reserved to the UK Government and
Parliament. Most of these devolved
powers were actually powers exercised at the EU level, on a shared basis with
the member States - agriculture, fisheries, environmental protection, consumer
protection etc.
Therefore,
the Scottish Parliament was directly tasked with complying with EU law, but
this 'internal' aspect of EU law in no way impugns the 'external' aspect of EU
law, exercisable by the UK Government and Parliament. Relatedly, it has already
been judicially recognised that the devolution institutions will experience a
significant Brexit dividend - an entire swathe of restrictions on the
competence of the devolved institutions will be completely expunged on Brexit
day (see Miller). This 'internal'
aspect of EU law directly concerns the Scottish Parliament and it would be
nonsensical if the Scottish Parliament could not take measures to clarify the
scope of how this fundamental shift in its competences is to operate.
The
Lord Advocate also dispenses with the argument made by the UK Law Officers
concerning the future contingency nature of the provisions of the Bill. The UK
Law Officers argue that the terms of the Bill, as drafted would cause the
Scottish Parliament to be in breach of its obligation not to undermine EU law
as set out in section 29 of the Scotland Act 1998 by simple dint of the fact
that the Scottish Parliament must comply with EU law right up to 11pm on the 29th
of March 2019. The UK Law Officers set much store on the contingent nature of
the power given by the Bill to the Scottish Ministers to bring into force such
provisions once the Bill became law. This argument appears weak. Commencement
orders are a perfectly natural feature of the UK legal landscape, both devolved
and reserved. It is perfectly normal and legal for a legislature to anticipate
future changes and to legislate accordingly. Further, if the said contingency
never materialises, then it is simply the case that that legal power is never
exercised and can be replaced or repealed.
A
further objection to the proposed Bill was taken by the UK Law Officers to the
effect that the Bill could not alter the terms of the Scotland Act 1998 as
regards the restriction of legislative competence on the grounds of EU law
compliance (section 29(2)(d) SA 1998). The Lord Advocate tersely rejected this
argument as well. The system of
devolution generally provides that Acts of the Scottish Parliament can be used
to modify Acts of the UK Parliament, where that UK law relates to devolved
competences. This significant power is a well-established feature of the
devolved landscape. Nevertheless, legally and practically there has to be
limitations upon this power, otherwise the devolved Parliament would, at a
stroke, have been transformed into an omnipotent, fully sovereign Parliament:
An anathema to the very nature of devolution.
Thus,
the Scotland Act 1998 does generally provide that an Act of the Scottish
Parliament cannot be used to modify certain central tenets of the
constitutional devolution framework as provided for in the Scotland Act 1998.
To put it more simply, the Scottish Parliament cannot pass an Act of Parliament
giving itself more power. However, the Scotland Act 1998 does allow for some
modifications to take place (Schedule 4 SA 1998). For present purposes, para. 7
of Schedule 4 of the Act is central. This part of the 1998 Act provides that an
Act of the Scottish Parliament can be passed to take out 'spent' provisions.
The key argument facing the Supreme Court is the notion of when the references
to the EU limitations on the legislative competence of the Scottish Parliament
become spent. If the UK Law Officers are right, the Scottish Parliament cannot
act to expunge the references to EU law limitations on Scottish Parliament
competence until the UK leaves. Form the Lord Advocate's perspective this view
is unduly restrictive. It binds the hands of the Scottish Parliament until
Brexit Day and, given the inherent uncertainty over the exact legal
implications of the UK's departure from the UK on the 29th of March 2019, the
Scottish Parliament cannot act prospectively to arrange its affairs as regards
Scots law (the devolved statute book) to manage and ensure an orderly, legally
certain departure.
The
final aspect of the case which is intriguing is brought about by the mere
effluxion of time. At the time of passing the Bill in the Scottish Parliament,
the UK Parliament had yet to pass its own legislative proposal for an orderly
Brexit. But soon after the legal objection was made to the Scottish Bill, the
UK Parliament's EU (Withdrawal) Bill received Royal Assent. This law provides
for retained EU law to be created for the utility of the entire UK. However, of
course, the Scottish Parliament objected to the terms of that law, refused a
Legislative Consent Motion and proceeded to continue to attempt to enact its
own continuity law.
A
direct consequence of that fact was that the Scotland Act 1998 was then amended
to add the terms of the EU (Withdrawal) Act 2018 into the list of laws in
Schedule 4 that are unamendable by the Scottish Parliament. Thus, the practical
result is that if the Scottish Parliament were to now try and introduce a Bill
along the lines of the impugned Continuity Bill, that Bill would be clearly
outwith the legislative competence of the Scottish Parliament. Thus, the Lord
Advocate has craved that the Supreme Court consider the question of legislative
competence as of the date of passing the Bill and not at a later date in time.
If the Supreme Court were to look at the case as from a later date in time,
then the reference has been of purely academic interest.
However,
even if the Supreme Court looks back in time to the point of passing the Bill,
the answer also becomes academic since the unamended Bill, from a practical
point of view cannot be passed since it has been rendered otiose. The best the
Lord Advocate can hope for now is that the Bill is characterised as being in
legislative competence and that certain, now unlawful provisions of the Bill,
can be expunged from it, allowing the legislative proposal (as amended) to be
turned into an Act of the Scottish Parliament.
This morning’s judgment is a clear vindication of
the Lord Advocate’s position. The court was unanimous that, at the point in
time when the Bill was passed in the Scottish Parliament, the entire Bill was
within the legislative competence of the Scottish Parliament, with the sole
exception of section 17 of the Bill. However, time marched onwards such that,
at the time of this judgment, some of the legal space about to be occupied by
the Scottish Bill was now occupied by the law of the sovereign Parliament of
the United Kingdom. As such, the court therefore qualified its decision and
recognised the clear legal reality pertaining at the date of the judgment -
certain provisions of the Bill were now rendered otiose and legally
impermissible as a direct result of the coming into force of the terms of the
UK Parliament’s EU (Withdrawal) Act 2018. Thus, it is in part a pyrrhic victory
for the Lord Advocate. The Bill, as presented at the time of
progressing to Royal Assent was predominantly within the legislative
competence of the Scottish Parliament. However, large sections of the Bill now
fall away since they are in direct conflict with the terms of the 2018 Act and
are thus outwith legislative competence of the Scottish Parliament.
In these uncertain times, it is absolutely certain
that there will now be interesting conversations regularly taking place between
HM Government and the Scottish Government to resolve this legal conflict.
Barnard
& Peers: chapter 27
Photo
credit: Daily Record
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