The UK Withdrawal From The European Union (Legal Continuity) (Scotland)

Factual and Procedural Background

After the United Kingdom notified the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on European Union, the UK Government promoted the European Union (Withdrawal) Act 2018 to secure post-exit legal continuity. Because proposed UK amendments that were supported by the Scottish Government failed, the Scottish Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”) on 21 March 2018. Within four weeks, the UK Attorney General and the Advocate General for Scotland (“the UK Law Officers”) referred the Bill to the Supreme Court under section 33 of the Scotland Act 1998 to test its legislative competence. During the reference, counsel for Wales and Northern Ireland intervened, and the UK Withdrawal Act received Royal Assent, amending the devolution framework while the reference was pending.

Legal Issues Presented

1. Whether, viewed as a whole, the Scottish Bill relates to the reserved matter of international relations (including EU relations) and is therefore outside devolved competence.
2. Whether section 17 of the Scottish Bill, which makes the effectiveness of certain UK subordinate legislation conditional on Scottish Ministerial consent, unlawfully modifies section 28(7) of the Scotland Act or otherwise relates to the reserved matter of the UK Parliament.
3. Whether section 33 and Schedule 1 of the Scottish Bill, which repeal “spent” references to EU law in the Scotland Act, are within competence.
4. Whether various operative clauses (e.g., incorporation of EU law, disapplication of EU principles, ministerial regulation-making powers) are incompatible with EU law, impermissibly modify the European Communities Act 1972, or breach the rule of law.
5. Whether, and to what extent, the subsequent UK Withdrawal Act places parts of the Scottish Bill outside competence by protecting that UK Act from modification under Schedule 4 of the Scotland Act.

Arguments of the Parties

UK Law Officers’ Arguments

• The entire Scottish Bill concerns international relations with the EU, a reserved matter, and so falls outside competence.
• Section 17 impermissibly conditions Westminster’s legislative power, thereby modifying section 28(7) of the Scotland Act.
• Section 33 and Schedule 1 usurp Westminster’s exclusive authority to amend the devolution settlement.
• Many operative clauses are presently incompatible with EU law or wrongly anticipate future competence.
• The UK Withdrawal Act now makes any parallel Scottish regime an unlawful modification of protected UK legislation.

Scottish Lord Advocate’s Arguments

• The Bill concerns post-exit domestic legal continuity, not ongoing international relations, and so is within devolved competence.
• Section 17 merely adds an additional procedural safeguard; it does not amend section 28(7).
• Paragraph 7 of Schedule 4 expressly lets the Scottish Parliament repeal “spent” enactments; section 33 uses that power lawfully.
• Section 1(2) postpones any clause that would conflict with EU law until after exit, avoiding present incompatibility.
• The Scottish regulation-making powers run in parallel with, not in modification of, those in the UK Withdrawal Act.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Scope of Reference: Under section 33, the Court may assess only the legislative competence limits in section 29; broader public-law grounds are irrelevant.
2. Whole-Bill Challenge: The Scottish Bill regulates post-exit domestic law and does not “relate to” the reserved field of international relations. Therefore, Question 1 answered in the negative.
3. Section 17: By making the legal effect of future UK regulations depend on Scottish Ministerial consent, section 17 implicitly curtails Westminster’s sovereign power and thus “modifies” section 28(7). It violates Schedule 4 and is outside competence.
4. Section 33 & Schedule 1: Paragraph 7 of Schedule 4 permits the Scottish Parliament to repeal “spent” provisions. Because the repeals would take effect only after EU obligations lapse, they are within pre-existing competence.
5. Compatibility with EU Law: Section 1(2) of the Scottish Bill delays any conflicting provisions until exit, so clauses criticised by the UK Law Officers are presently compatible and do not modify the European Communities Act 1972.
6. Effect of Subsequent UK Withdrawal Act: Parliament later protected the UK Withdrawal Act from modification. Numerous Scottish clauses (enumerated by the Court) would now, if enacted, impliedly amend or disapply that protected Act and are therefore outside competence.
7. Temporal Perspective: Competence must be assessed as at the date of the Court’s decision, meaning amendments made by the UK Withdrawal Act are relevant.

Holding and Implications

PARTIALLY OUTSIDE COMPETENCE. The Court ruled that, although the Scottish Bill in principle concerns devolved matters, specific provisions—most notably section 17 and multiple clauses that would modify the protected UK Withdrawal Act—are beyond the Scottish Parliament’s legislative competence. Practical effect: the Bill cannot receive Royal Assent in its current form; the Scottish Parliament must remove or amend the identified clauses for the legislation to become law. The judgment confirms the supremacy of Schedule 4 protections while leaving open space for devolved continuity legislation that avoids modifying protected UK enactments. No new constitutional doctrine was created, but the decision delineates the post-Brexit boundary between Westminster and devolved legislative power.