UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

– in the Scottish Parliament at on 28 February 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is a statement by James Wolffe on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

The Lord Advocate will take questions at the end of his statement.

The Lord Advocate (James Wolffe):

So far as I know, there is no precedent for a law officer making a statement about the legislative competence of a bill to this Parliament on the introduction of the bill. However, this is an exceptional case and, accordingly, it is appropriate that, as the Scottish Government’s senior law officer, I should give a statement about the bill that was introduced yesterday: the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

Presiding Officer, you and I are each obliged to consider the legislative competence of any Government bill. The Government cannot introduce a bill unless it is accompanied by a statement that, in the view of the responsible minister, the bill is within competence, and the ministerial code requires such a statement to be cleared by law officers. I can confirm that I cleared the certificate of competence in relation to this bill.

You, for your part, are also required by the Scotland Act 1998 to decide whether, in your view, the provisions of the bill are within competence. Yesterday, you stated your view that the provisions of the bill are not within the legislative competence of the Parliament. I am grateful to you for the careful and serious consideration that you have given to the matter and for the way in which you have expressed your conclusions. In stating that the Government disagrees with those conclusions, I would not wish it to be thought that I am expressing any criticism of you.

Your statement does not prevent this Parliament from considering and, if so advised, passing the bill. However, this is the first time that a Government bill has been introduced to the Parliament with a negative statement from the Presiding Officer. In the circumstances, I owe it to the members of the Parliament, as the Scottish Government’s senior law officer, to state publicly and in this chamber that the Government is and remains satisfied that the bill is within the legislative competence of the Parliament.

Members will understand that, when I clear a ministerial statement on legislative competence, I am concerned, as you are, Presiding Officer, only with the question of whether the bill is within the competence of the Parliament. That is a legal question, and one that could, ultimately, if necessary, be tested in the courts. It is to that question that I will address myself in this statement, and I will gladly leave political questions about the bill—questions that are, frankly, irrelevant to the issue of legislative competence—to others.

I remind members that, as far as the 1998 act is concerned, the Parliament’s general legislative competence is constrained by section 29 of that act. Unless one of those statutory constraints applies, the bill would, if enacted, be within the legislative competence of the Parliament.

Presiding Officer, you have stated in your own assessment of competence that the fundamental question at issue in the case of this bill is whether it would, if enacted in its present form, be incompatible with European Union law. I respectfully agree that that is the fundamental question and I accordingly propose to focus on it.

Section 29(2)(d) of the Scotland Act 1998 in effect states that a provision of an act of this Parliament that is incompatible with convention rights or with EU law is not law. The purpose of that provision is to ensure that acts of this Parliament do not breach the United Kingdom’s obligations under the European convention on human rights or under EU law. So far as EU law is concerned, the same constraint applies, as long as we are members of the EU, to all public bodies within the UK, including the UK Parliament. The question that must be asked is, accordingly, whether any provision in the bill is incompatible with EU law.

Presiding Officer, the legislative competence of the provisions in the bill falls to be considered in the light of the following facts. First, the United Kingdom Government has taken steps under article 50 of the Treaty on European Union to withdraw the United Kingdom from the European Union, and by virtue of the terms of article 50, in the absence of agreement otherwise, the UK will leave the European Union next March. Secondly, EU law will thereupon cease to apply and, on the basis of the Supreme Court’s analysis in the Miller case, the EU law constraints on the powers of this Parliament and on the Scottish ministers will cease to have any content. Thirdly, there is an urgent practical necessity to make provision of the sort that is contained in the bill to enable the law to operate effectively immediately upon and after the UK’s withdrawal from the EU.

Against that background, let me make these observations about the provisions of the bill. The legal obligation on ministers to comply with EU law will endure until the UK leaves the EU. The bill does not change that obligation. Ministers will continue to be subject to legal requirements to transpose, implement and otherwise abide by EU law so long as the UK remains a member of the EU. The bill does not alter those requirements. The bill does nothing that will alter EU law or undermine the scheme of EU law while the UK remains a member of the EU.

What the bill does is to make provision for the continuity of the law immediately upon and following withdrawal from the European Union. It does this by two principal mechanisms. First, it provides for laws that are in force before the UK leaves the European Union to continue in force in domestic law after departure. To make such a provision is plainly not incompatible with European Union law. Secondly, the bill confers powers that will enable the law to be adjusted as required so that the law will continue to work effectively immediately upon withdrawal from the European Union.

The terms of the bill ensure that its provisions will not come into effect, and those powers cannot be exercised, so as to alter or affect the law before the United Kingdom leaves the European Union if to do that would be incompatible with EU law, so the grant of those powers and their exercise in accordance with the bill is not and cannot be incompatible with EU law.

In short, the bill is designed to achieve two things. The first is to enable the continuing effectiveness of the law upon and following the UK’s departure from the European Union—in other words, to secure a smooth transition in a manner that is consistent with the European Union law principle of legal certainty in the context of a withdrawal process that is itself provided for by European Union law. The second is to make sure that that is done in a way that does not involve any breach of European Union law and does not put the United Kingdom in breach of its obligations under EU law for as long as the UK remains a member of the EU.

It is not incompatible with EU law to make provision to deal with the inevitable consequences in domestic law of withdrawal from the EU in that way. Indeed, that appears to be the basis on which the UK Government’s own European Union (Withdrawal) Bill, on which the continuity bill has been modelled, proceeds. If that is right, and if, contrary to the view of the Scottish Government, the continuity bill is incompatible with EU law, the same reasoning would apply equally to the UK Government’s bill.

Presiding Officer, in your assessment of legislative competence, you have put your finger on the central point that arises in relation to the bill—that it contains provisions and empowers ministers to make provisions by regulations that, if they were to come into force before the UK leaves the EU, would be incompatible with EU law. You characterise that as involving an exercise of competence before the competence has been transferred, but the Scottish Government’s view is that the bill is framed to ensure that any provisions that would have that effect can come into force only when the UK leaves the EU. As the Presiding Officer of the National Assembly for Wales has concluded in the context of the Welsh Government’s bill, that makes all the difference and ensures that there is, and can be, no incompatibility between the provisions of the continuity bill and EU law.

The bill has been carefully drafted so that it is not incompatible with EU law. Nothing can be done under it that would put the UK in breach of its obligations under EU law. This is not a case where the Parliament is being asked to exercise a competence before that competence has been transferred to it. Rather, the Parliament has competence at this time to deal, in the way that the bill provides, with the consequences for our domestic law of leaving the European Union.

Finally, l appreciate that members have an interest in the legislative competence of the bill, and I look forward to answering, to the extent that I properly can, questions that members across the chamber may have.

Photo of Adam Tomkins Adam Tomkins Conservative

I thank the Lord Advocate for his statement and for early sight of it. I have two quite detailed legal questions to ask him, if I may.

First, in his answer yesterday to Bruce Crawford’s parliamentary question, the Lord Advocate stated that the constraint in section 29(2)(d) of the Scotland Act 1998, that this Parliament may not legislate incompatibly with EU law, will, when the United Kingdom withdraws from the European Union

“cease to have any content.”

Those were his words. The policy memorandum accompanying the bill says that the section “will empty of meaning.” Can the Lord Advocate clarify why he thinks that, and what he means by it?

I say with great respect that what the Lord Advocate has said strikes me as being really rather odd, in that it implies that the Parliament, as a public body, can be constrained by EU law only for as long as the United Kingdom is a member state of the European Union. However, that is not the case, is it? The Westminster Parliament, when creating this Parliament, could have legislated to prevent us from enacting law that was contrary to EU law irrespective of whether the UK is a member state of the European Union, but the policy memorandum refers to paragraph 130 of the Miller case in the context of the matter, although that paragraph does not support the conclusion that, after Brexit, section 29(2)(d) will

“cease to have any content.”—[

Written Answers

, 27 February 2018; S5W-14945.]

My second question concerns the difference between legal effect and legal validity. It is true, as the Lord Advocate said, that the bill is carefully drafted to ensure that provisions that would be contrary to EU law will not come into force until after exit day, but that consideration goes to their legal effect in the future, not to their legal validity now. The question of competence, when it comes to compatibility with EU law, is a matter of legal validity, not future or anticipated legal effect. That is the critical point of legal analysis on which the Presiding Officer relies: I think that it is correct. Why does the Lord Advocate not agree?

The Lord Advocate:

On the first point, about the effect of withdrawal from the EU, my analysis—and that of the Scottish Government—reflects the analysis of the Supreme Court in the Miller case, as I understand it. The analysis of the Supreme Court, in its application to the definition of EU law for the purposes of the European Communities Act 1972, was that withdrawal from the EU would empty section 29(2)(d) of content. On the Scottish Government’s analysis, that flows through to an effect on the definition of EU law within the Scotland Act 1998. Paragraph 130 of the Supreme Court judgment in the Miller case said this:

“The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence.”

While recognising that respectable legal minds may sometimes disagree, I respectfully adhere to the approach that has been taken in the analysis of the bill.

On the second point, about the distinction that Professor Tomkins has made between validity and effect, section 29(2)(d) of the Scotland Act 1998 is concerned with compatibility with EU law. The purpose of that provision is to ensure that the Scottish Parliament does not, when passing legislation, act in a manner that would put the United Kingdom in breach of its international obligations under EU law. The continuity bill has been carefully framed so that nothing that might be done under it could or will put the United Kingdom in breach of those obligations. For those reasons, I suggest that nothing in the bill is incompatible with EU law.

Photo of Neil Findlay Neil Findlay Labour

I thank the Lord Advocate for his statement. As I stated yesterday, Scottish Labour will always defend the principles of devolution and the settlement in Scotland, and we support the Scottish and Welsh Governments in their efforts to make the UK Government fulfil the commitments that it gave on the devolution of powers. We urge the UK and Scottish Governments to get back round the table to resolve clause 11 issues, because we want to see a workable and competent bill introduced, and will work with others to find a solution to the situation.

We note the statement from the Presiding Officer and that of the Lord Advocate. We find ourselves in a regrettable situation, but given that the Government is now seeking support to circumvent the normal conventions of this Parliament, it is incumbent on all members of the Parliament to ensure thorough scrutiny of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

I therefore ask the Lord Advocate what the differences are between the bill that has been introduced to the National Assembly for Wales and the bill that has been introduced here. Has the Lord Advocate consulted his counterparts in Wales about how they managed to introduce a competent bill and why that has not been replicated here? Can he advise what precedent will be set here if a bill is introduced and passed without the Presiding Officer’s approval? On what legal basis is this being done through emergency legislation, and what is the longest period for which parliamentary scrutiny can take place without affecting implementation?

Has any previous bill from a UK jurisdiction been given royal assent when it has not been deemed competent by the its Parliament and, given the Government’s previous defeat on Brexit issues in the Supreme Court, how confident is the Lord Advocate of defending the case?

Finally, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has the potential to impact on a huge number of organisations, citizens and communities the length and breadth of the country, who must be allowed and enabled to have their say. It is our job in Parliament to ensure that that happens. The bill throws up many questions and challenges for the Government, Parliament and its members. Does the Lord Advocate agree that rushed legislation is rarely good legislation, and that extensive scrutiny is a good thing in such a complex area?

The Lord Advocate:

The first point to make clear is that the Scottish Government is satisfied that the bill falls within the Parliament’s legislative competence. Although the Welsh constitutional settlement is different from the settlement in Scotland, and despite differences in the approach that has been taken in the two bills, I am not aware of any relevant difference that bears on the critical issue on which the two Presiding Officers have disagreed with each other.

Secondly, as I think the Presiding Officer acknowledged in his statement yesterday, a Presiding Officer’s negative certificate does not prevent Parliament from debating and, if so advised, passing a bill. Ultimately, the only authoritative view on the questions of law that arise in the context of legislative competence comes from the court.

Thirdly, on the question of the nature and extent of parliamentary scrutiny, that is a matter for the parliamentary authorities to consider. It is not one that is appropriate for me to comment on.

Photo of Patrick Harvie Patrick Harvie Green

We face extraordinary circumstances that neither this Parliament nor the people whom we represent have chosen to face. Is it reasonable to suggest that, where there are alternative interpretations in such a complex area of law, one of the factors that we need to bear in mind is the intention of Parliament—in this case, the Westminster Parliament—in introducing its bill? When we look at section 29(2)(d) of the Scotland Act 1998, which defines legislative competence in relation to European Union law, is it reasonable to suggest that no reasonable person could have imagined that the Westminster Parliament’s intention would be to constrain us with regard to EU law in circumstances in which we were outside the European Union?

Secondly, if, during its scrutiny, the Scottish Parliament chooses to debate amendments that would change the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

, perhaps to address some of the shortcomings that some of us perceive in the bill based on which it has been introduced, will the Lord Advocate or the Scottish Government continue to play a role in determining the competence of an amended bill?

The Lord Advocate:

On the first question, given that the purpose of section 29(2)(d) of the 1998 act is to ensure that this Parliament does not put the United Kingdom in breach of its EU obligations, it follows that when the UK is no longer a member of the EU and EU law no longer applies to it, section 29(2)(d) will cease to impose constraints on this Parliament.

As for the second question, on amending the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

, the statutory position is that at the end of a bill process, when a bill has been passed by Parliament, law officers have the opportunity to consider whether the bill, by virtue of any amendment, has gone outwith competence. They may then, on that ground, refer it to the Supreme Court. That is the statutory answer.

The practical answer is that if amendments are lodged that are, in the Government’s view, informed by the views of law officers, outwith competence, that will be communicated as appropriate in the course of parliamentary proceedings.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I ask the Lord Advocate to consider the third possible route that is described on page 5 of the bill’s policy memorandum, under which the Scottish Parliament passes the bill and the UK Government does as the Scottish Government expects and deletes the devolved aspects from its withdrawal bill. Does the Lord Advocate accept that the only continuity legislation will be the Scottish act? If so, what would happen if the Supreme Court were to strike down that legislation as being outwith competence?

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Can the Lord Advocate confirm that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is designed to dovetail with the European Union (Withdrawal) Bill, based on the expectation that the United Kingdom Government will remove the devolved aspects from the withdrawal bill in the event that the Scottish Parliament does not pass a legislative consent motion?

The Lord Advocate:

It is the Scottish Government’s view that if the Scottish Parliament is unable to consent to the European Union (Withdrawal) Bill, the constitutionally correct position would be for the UK Government to remove devolved matters from that bill and for the Scottish Parliament to pass its own provision to deal with legal continuity. The skilled parliamentary draftsmen who draft Scottish Government legislation have worked hard to seek to align the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

, so far as is consistent with certain policy differences, with the provisions of the United Kingdom Government’s bill.

Photo of Donald Cameron Donald Cameron Conservative

The Lord Advocate has already touched on this in his statement, but does he disagree with the Presiding Officer’s statement that the

“consistent approach to interpreting the powers of the Parliament has been that legislation cannot seek to exercise competence prior to that competence being transferred”?

The Lord Advocate:

The important thing to consider is the particular provision of section 29(2)(d) of the 1998 act. Under other parts of section 29, questions such as whether a bill relates to a reserved matter or whether a bill would modify or infringe schedule 4 of the 1998 act could arise. Again, it would not be wise or appropriate for me to express a definitive view on a hypothetical question, but I suggest that it is important not to read across an approach that might be taken in relation to other parts of section 29 to the particular issue of whether provisions in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill are incompatible with EU law.

Photo of Emma Harper Emma Harper Scottish National Party

Can the Lord Advocate confirm that the European Union (Legal Continuity) (Scotland) Bill is simply about preparing Scotland’s laws for what will happen after the UK leaves the EU, and that the bill has been drafted so that right up until that time, the Scottish Parliament will continue to act at all times in a way that is compatible with EU law?

The Lord Advocate:

The short answer is yes—but perhaps I can make two further points. The negative point is that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is drafted to ensure that nothing will be done that is incompatible with EU law before withdrawal from the EU. However, the bill positively provides a practical mechanism for securing the EU law principle of legal certainty in the context of a process that is specifically provided for by EU law, which is the process of withdrawal in which we are engaged.

Photo of Claire Baker Claire Baker Labour

It is highly regrettable that we are in the situation of the Lord Advocate and the Presiding Officer having conflicting views. The Parliament needs to be confident about the competence of the legislation that we are considering. The Lord Advocate has argued that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is legally competent and has said that there has been significant effort to align the bill with the UK Government’s withdrawal bill. Can he comment on the route of combining the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill further with the withdrawal bill and is he confident that that could secure a smooth transition, as identified as a key objective of the bill in his statement?

Photo of Ash Denham Ash Denham Scottish National Party

Does the Lord Advocate think that the bill that has been prepared by the Welsh Government is attempting to achieve the same aims as the Scottish Government’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill?

The Lord Advocate:

Again, the short answer is yes—as far as I am aware, the purpose is the same. There are differences that reflect differences in the particular situations of the two constitutional settlements.

Photo of Maurice Golden Maurice Golden Conservative

In his statement, the Lord Advocate focused on compatibility with EU law. As he knows, that is not the only constraint on this Parliament’s competence. Can he explain why, in his view, no provision of the bill trespasses on matters that are otherwise reserved to the UK Parliament?

The Lord Advocate:

In my statement, I sought to focus on what I and the Presiding Officer regard as the fundamental issue. Members may take it that the Scottish Government is satisfied that the bill does not go outwith the legislative competence of Parliament in any other respect.

Photo of Clare Haughey Clare Haughey Scottish National Party

C an the Lord Advocate confirm that, through the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, and c ontrary to some suggestions elsewhere, the Scottish Government is not attempting to use powers that are reserved to the Westminster Parliament?

The Lord Advocate:

I am sorry; I did not quite hear the question.

The Presiding Officer:

The question sought an assurance that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill would not take reserved powers from Westminster.

The Lord Advocate:

There is nothing in the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill that would affect any of the limits on the competence of this Parliament, other than the limits that are imposed by EU law.

Photo of James Kelly James Kelly Labour

Bearing in mind the seriousness of the situation, in that we have differing legal advice from the Presiding Officer and from the Lord Advocate, can the Lord Advocate state whether he took additional external legal advice, separate from that of his in-house legal team?

The Lord Advocate:

As members will be well aware, the Scottish Government does not disclose the sources of its legal advice. There is one express exception in the ministerial code, which is that Government may state what is a matter of public record, which is that law officers will clear any certificate of competence of a bill. That is the basis upon which I have confirmed that I cleared the certificate of competence for the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I am here today as a member of the Scottish Government and, like any other minister, I am explaining to Parliament the Scottish Government’s position in relation to its legal analysis.

Photo of Ben Macpherson Ben Macpherson Scottish National Party

The Lord Advocate made a number of references to, and comparisons with, the UK Government’s European Union (Withdrawal) Bill. For clarity, can the Lord Advocate confirm that it is the case that any arguments that suggest that the Scottish Government is acting in a way that is incompatible with EU law could also be used to argue that the UK Government’s bill is incompatible with EU law and that, therefore, if one is compatible with EU law, the other is as well?

The Lord Advocate:

Again, the short answer is yes.

Photo of Alex Neil Alex Neil Scottish National Party

I welcome the Lord Advocate’s statement. Can he confirm that the Supreme Court’s decision in relation to the Gina Miller case on article 50, in which the Supreme Court dismissed the Sewel process as a convention and not law, would nevertheless make the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill justiciable and likely to succeed as valid, if it were to end up in the Supreme Court?

The Lord Advocate:

Indeed.

The question of whether any bill of this Parliament is or is not within legislative competence can ultimately be adjudicated on by the courts. Again, I will not anticipate a hypothetical possibility that the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill may end up in a particular forum.

Photo of Neil Findlay Neil Findlay Labour

On a point of order, Presiding Officer. I asked the Lord Advocate on what legal basis the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill had to be dealt with as emergency legislation, but he did not address that issue in his answer. Can you address that point, Presiding Officer? Why must the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill be done as emergency legislation?

The Presiding Officer:

I note Neil Findlay’s question. He asked a number of questions of the Lord Advocate, including questions such as that one, that are more for the Parliamentary authorities or the Minister for Parliamentary Business. The question whether a bill needs to be dealt with as emergency legislation is one for the whole Parliament.

The Parliamentary Bureau will discuss the matter and will take a view or make a recommendation. It might not make a recommendation, but we will bring the issue to Parliament. It will then be for Parliament to debate and to decide on whether it wants the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill to be treated as emergency legislation. Therefore, in the end, it is up to you, Mr Findlay, and all the other members.

The Lord Advocate:

I have spent a lot of time in my professional career avoiding hypothetical questions. [

Laughter

.]

From my perspective, the only question that needs to be addressed at this point is whether the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is within the legislative competence of the Scottish Parliament. It would be unwise for me to speculate about what might happen in an uncertain future.

The Scottish Government has been clear that its preferred position is a single piece of United Kingdom legislation to which the Scottish Parliament could consent: that remains the position. However, that is not the point that we are at. That is the context in which the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has been introduced.

As I said in an answer a moment ago, the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has been drafted by skilled parliamentary draftsmen in such a way that, as far as possible, the approach aligns with the approach that is taken in the United Kingdom Government’s European Union (Withdrawal) Bill. Again, it would be wrong for me to speculate on the way in which either bill might develop as they continue through their parliamentary processes.