In march 2017, the UK notified the European Council that it would withdraw from the EU in
accordance with article 50 of the Treaty on European Union. On the UK’s withdrawal, EU law will
cease to bind the UK and its constituent jurisdictions. However, many of our laws are the product of
EU legislation and therefore to achieve legal continuity and certainty, it is considered necessary to
incorporate direct EU legislation into domestic law. During the passing of The European Union
(Withdrawal) Act 2018, the proposed amendments which the Scottish Government supported where
defeated in the House of Commons. They therefore introduced the UK Withdrawal from the
European Union (Legal Continuity) (Scotland) Bill ("the Scottish Bill") in the Scottish Parliament in
February 2018, stating it was within the legislative competence of the Scottish Parliament. However,
the presiding officer disagreed as the Bill would be enacted before the UK withdrew from the EU and
it would not be compatible with EU law- they could not exercise competence before the competence
had been transferred to it. The Scottish parliament passed the bill in which the Attorney General
brought it to question in court, with the Lord Advocate for Scotland still maintaining it would be
within the legislative competence of Scottish parliament.
ISSUES:
· Does the Scottish Parliament have power to legislate for the continuity of laws relating to
devolved matters in Scotland which are now subject to EU law but will cease to have effect after
the UK withdraws from the EU?
HELD:
The Lords held that the Scottish Bill as a whole would not be outside of its legislative competence but
that s.17 of it would be due to modifying the UK Parliament’s unqualified legislative power described
in s.28 of the Scotland Act. S.33 and Schedule 1 would also not be outside of its legislative
competence. Therefore, certain provisions would be and others not.
NOTES:
· The Scotland Act 1999 ruled that the powers of the Scottish Parliament are limited by law and
they cannot ‘enjoy the sovereignty of the Crown in Parliament’. The act must be interpreted in
regard to its aim to achieve a constitutional settlement, and therefore recognise the importance
of giving a consistent and predictable interpretation of it. It must therefore be interpreted
according to the ordinary meaning of the words used.
, Þ Section 28 provides the Scottish Parliament may make laws but section 29
provides these laws cannot be outside their legislative competence which is
applicable when the law relates to reserved matters, is in breach of the
restrictions in Schedule 4 and when it is incompatible with EU law.
Þ Section 101 provides that provisions should be read as narrowly as is required for
the provision to be within competence (if such a reading is possible)
· The Scotland Act 2016 S.63A provided that the Scottish Government/Parliament are a
‘permanent part of UK’s constitutional arrangements’ and that the purpose of this was to signify
the commitment of the UK parliament to the Scottish Parliament. They cannot be abolished
except on the basis of the people of Scotland voting in a referendum.
Þ The Sewel convention was also recognised stating that the Parliament of the
United Kingdom will not normally legislate with regard to devolved matters
without the consent of the Scottish Parliament.
Whether the Scottish Bill as a whole is outside the legislative competence of the Scottish Parliament:
· It may be outside the legislative competence if it is contrary to the constitutional framework
underpinning the devolution settlement, if it related to the reserved matter of relations with the
EU or if it is contrary to the rule of law principles of legal certainty and legality.
· A Scottish enactment which is held by the courts to be unlawful is not necessarily a nullity, e.g. in
AXA General insurance ltd v Lord Advocate the court agreed that since the Scottish Parliament is
a statutory body owing its powers and duties to an Act of the UK parliament, s29 of the Scotland
act is not fully comprehensive of the grounds on which its legislation may be reviewed.
Þ However, for the purposes of this case in which only s33 of the Scotland Act is
concerned, the list of legislative competence in s29 is fully comprehensive. This
leaves the question of whether the Scottish Bill ‘relates to reserved matters’
involving the EU within s.29. ‘relate to’ means it must have ‘more than a loose or
consequential connection’ with it (Martin v Most).
Þ The lords do not believe the Scottish Bill relates to relations with the EU as it will
take effect at a time when there are no legal relations with the EU. It simply
regulates the legal consequences in Scotland of EU being terminated as a source
of domestic law relating to devolved matters.
Whether section 17 of the Scottish Bill is outside the legislative competence of the Scottish
Parliament:
· It is said to be outside its legislative competence as it modifies s.28(7) and 63(1) of the Scotland
act and therefore breaches the restriction of Schedule 4 set out in s.29. it is also claimed to relate
to the reserved matters of ‘the parliament of the UK’ also set out in s.29.
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