44: Great Repeal Bill – It’s all in the timing

Just as Report Stage of the European Union (Withdrawal) Bill commences today in the House of Lords – the last proper opportunity for government to move, and peers to debate, detailed amendments to the Bill, the UK Government’s senior Law Officers, the Attorney General and the Advocate General for Scotland, have referred anticipatory EU exit legislation already passed in the Scottish Parliament and the National Assembly for Wales, to the UK Supreme Court. The Law Officers have a jurisdiction under the Scotland Act 1998 and the Government of Wales Act 2006 to refer questions of devolved legislation to the UK’s highest court, the ultimate authority on matters of UK constitutional law.

The case before the Supreme Court is essentially one to do with the competence or range of authority of the Scottish Parliament and the Welsh Assembly under the current devolution settlement. Provisions in legislation passed by a devolved legislature which are outside legislative competence have no legal effect. Accordingly it can have serious consequences for those who rely on them. The UK Attorney General, Jeremy Wright, highlighted the risk of the Scottish and Welsh legislation creating ‘serious legal uncertainty for individuals and businesses as we leave the EU’. Hence the reference.

However whilst this is essentially a legal question, it is loaded with politics; a test of strength of the UK government and the devolved administrations defining devolved competence in a post Brexit world.

The Scottish UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the Law Derived from the European Union (Wales) Bill (the Legal Certainty Bills) both anticipate the effect of the UK’s withdrawal from the EU. In short the Legal Certainty Bills have been passed to ensure that when the UK leaves the EU, Scots and Welsh law carries on functioning in the same way. The Westminster EU Withdrawal Bill of course does just the same thing, but currently reserves important decisions on devolution post-Brexit to the government. There is also an essential question of timing. The Scottish Bill assumes it can make Scottish law now for the exercise of powers which it is possible the Parliament will acquire in the future ie once the UK has left the EU. The legal question is ‘Can that be done compatibly with EU law-and without encroaching on the UK Parliament’s sovereignty?’ The Presiding Officer warned the Scottish Parliament it couldn’t.

‘In my view the Scotland Act provides that the legislative competence of the Parliament is to be assessed at the point at which legislation is passed. The Parliament and the Scottish Ministers will remain bound to act compatibly with EU law until such point as the Treaties cease to apply. In my view this prevents the Parliament from exercising legislative power now, even though it assumes it will be legally able to act in the future.’

The Scottish government on legal advice thinks it can. So the Supreme Court will decide who is right.

Politically, the dispute reflects the failure of the UK and Scottish and Welsh governments to reach agreement on the UK-wide frameworks which will shape how powers are repatriated to the devolved governments and exercised once the UK leaves the EU- in short how the UK’s own internal market will be established when we leave the EU. In addition the Scotland Legal Certainty Bill is markedly different in important respects from the Westminster Withdrawal Bill, reflecting Scotland’s frustration with the exit terms imposed upon it by the UK. For example the Scottish Bill confers powers on Scottish Ministers to make the necessary legislative preparations for UK withdrawal, including amending retained (devolved) direct EU legislation. This power is not available to Scottish Ministers in the UK Withdrawal Bill but currently retained to UK government ministers. The Scottish Bill also incorporates the Charter of Fundamental Rights into Scots law as it applies to devolved matters. By contrast the UK Withdrawal Bill expressly excludes the Charter from incorporation into domestic law post exit day. So there are major differences reflecting the political divide.

If the political time bomb is disarmed, for example by the government making concessions, the legal one, whilst constitutionally crucial, may remain academic. The government has until end of Lords’ Report stage in mid-May to move amendments to the EU Withdrawal Bill to satisfy the Scottish and Welsh. Jeremy Wright has said he hopes the matter will be resolved ‘without the need to continue this litigation’ a sentiment echoed by the Scottish Minster in charge of UK negotiations on Scotland’s place in Europe. But time is getting short and a constitutionally crucial case in the Supreme Court shows that the stakes are high.

‘No, don’t tell me it’s time,
it’s all in the timing.’ (Anthony Phillips, Wise after the Event)

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