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1 Case No. UKSC 2018/0080 in the SUPREME COURT OF Case No. UKSC 2018/0080 IN THE SUPREME COURT OF THE UNITED KINGDOM BETWEEN HER MAJESTY’S ATTORNEY GENERAL -and- HER MAJESTY’S ADVOCATE GENERAL FOR SCOTLAND Applicants -and- THE LORD ADVOCATE Respondent -and- (1) THE COUNSEL GENERAL TO THE WELSH GOVERNMENT (2) THE ATTORNEY GENERAL FOR NORTHERN IRELAND Interested Parties CASE FOR HER MAJESTY’S ATTORNEY GENERAL AND HER MAJESTY’S ADVOCATE GENERAL FOR SCOTLAND 1 INDEX TO SUBMISSIONS (1) Introduction Paras. 1 - 6 (2) The Jurisdiction of the Court Paras. 7 - 9 (3) The Legislative Competence of the Scottish Parliament Paras. 10 - 26 (4) The Grounds for the Reference (A) The Scottish Bill as a Whole Paras. 27 - 47 (B) Section 17 of the Scottish Bill Paras. 48 - 60 (C) Section 33 of and schedule 1 to the Scottish Bill Paras. 61 - 73 (D) The provisions of the Scottish Bill that are incompatible Paras. 74 - 111 with EU law and contrary to the rule of law (5) Conclusion Para. 112 Annex A: Summary of the Provisions of the Scottish Bill Annex B: Summary of the Parliamentary Passage of the Scottish Bill Annex C: Summary of the Provisions of the UK Bill 2 (1) INTRODUCTION 1. This Case is filed in support of a reference which has been made by Her Majesty’s Attorney General and Her Majesty’s Advocate General for Scotland under s.33(1) of the Scotland Act 1998 (“SA”; “the reference”). Section 33(1) permits those officers to refer to the Supreme Court the question of whether a Bill passed by the Scottish Parliament, or any provision of such a Bill, would be within its legislative competence.1 2. The reference has been made in respect of the entirety of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”) which was passed on 21 March 2018. A summary of the provisions of the Scottish Bill is contained in the reference and is repeated in Annex A to this Case. 3. The Scottish Bill purports to make provision in relation to the continued effect in Scotland of provisions of European Union (“EU”) law upon the withdrawal of the UK from the EU. It does so in circumstances in which the UK is in ongoing negotiations with the EU as to the terms of withdrawal, and the Parliament of the United Kingdom (“Parliament” or “the UK Parliament”) is in the advanced stages of consideration of legislation covering the same subject matter: the European Union (Withdrawal) Bill (“the UK Bill”). When enacted, the UK Bill will legislate to cover, on a UK wide basis, the retention of the body of EU law in domestic (UK) law. It makes detailed provision, inter alia, for the devolution aspects of that retention. It envisages and makes provision for UK-wide legislative solutions to some of the issues arising from that retention – including conferring power on UK Ministers, under Parliament’s supervision, to make subordinate legislation applying to the whole of the UK. A summary of the provisions of the UK Bill is contained in the reference and is set out in Annex C to this Case. 4. In the Policy Memorandum published on introduction of the Scottish Bill, the Scottish Government explained that the Scottish Bill was being introduced in direct response to 1 This is the first such reference made in respect of a Bill of the Scottish Parliament. References have been made in respect of Bills of the Welsh Assembly: In re Local Government Byelaws (Wales) Bill [2012] UKSC 53; [2013] 1 AC 792; In re Agricultural Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622; In re Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3; [2015] AC 1016. 3 the UK Bill. A summary of the statements and publications made by the Scottish Government concerning the Scottish Bill prior to and during its passage through the Scottish Parliament is contained in Annex B to this Case. The introduction of the Scottish Bill followed the rejection by the House of Commons of proposed amendments to the UK Bill which the Scottish Government had promoted and the substance of those rejected amendments was incorporated into the Scottish Bill. In large part the Scottish Bill directly replicates the provisions and powers of the UK Bill, but with key powers under its provisions being exercised by the Scottish Parliament or the Scottish Ministers. Notably, it purports to render of “no effect” in Scots law any subordinate legislation (both of the kind provided for by the UK Bill and that provided for under primary legislation in the future) to which the Scottish Ministers have not consented (s.17). 5. Upon introduction of the Scottish Bill, the Presiding Officer made a detailed reasoned statement explaining that he had concluded that certain provisions of the Scottish Bill (those whose legal effect would be postponed by s.1(2)) would not be within legislative competence. He took the view that the purported competence deferral mechanisms in the Scottish Bill could not have the effect of altering how competence is to be assessed. 6. At the same time as the reference made in relation to the Scottish Bill, the Attorney General also made a reference to the Court under s.112(1) of the Government of Wales Act 2006 (“GOWA”) in respect of the Law Derived from the European Union (Wales) Bill (“the Welsh Bill”). The reference in relation to the Welsh Bill has been withdrawn following an agreement reached with the Welsh Government concerning the terms of the UK Bill, as a result of which the Welsh Bill is to be repealed. (2) THE JURISDICTION OF THE COURT 7. The Court’s jurisdiction arises under s.33(1) SA, which provides that the Advocate General, the Lord Advocate or the Attorney General may “refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision”. On such a reference, it falls to the Court to assess the question of competence at the point the Bill is passed and before it becomes law. 4 8. A Bill does not become an Act of the Scottish Parliament (“an ASP”) until it receives Royal Assent: s.28(2). If a s.33 reference is made, the Bill cannot be submitted for Royal Assent until the reference has been decided or otherwise disposed of by the Court: s.32(2)(b). 9. In Re Local Government Byelaws (Wales) Bill [2012] UKSC 53; [2013] 1 AC 792, §§79-80, Lord Hope gave general guidance as to the approach the Court should take in determining whether a Bill of the National Assembly for Wales is within its legislative competence. That approach is equally applicable in a reference of a Bill passed by the Scottish Parliament under s.33 SA: “79. First, the question whether a Bill of the Assembly is within its legislative competence is a question of law which, if the issue is referred to it, the court must decide. The judicial function in this regard has been carefully structured. It is not for the judges to say whether legislation on any particular issue is better made by the Assembly or by the Parliament of the United Kingdom at Westminster. How that issue is to be determined has already been addressed by the United Kingdom Parliament. It must be determined according to the particular rules that section 108 and Schedule 7 have laid down. Those rules, just like any other rules, have to be interpreted. It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence. 80. Second, the question whether the Bill is within competence must be determined simply by examining the provisions by which the scheme of devolution has been laid out. That is not to say that this will always be a simple exercise. But, as Lord Walker of Gestingthorpe JSC observed in Martin v Most 2010 SC (UKSC) 40, para 44 when discussing the system of devolution for Scotland, the task of the United Kingdom Parliament in relation to Wales was to define the legislative competence of the Assembly while itself continuing as the sovereign legislature of the United Kingdom. It had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. The aim was to achieve a constitutional settlement, the terms of which the 2006 Act was designed to set out. Reference was made in the course of the argument in the present case to the fact that the 2006 Act was a constitutional enactment. It was, of course, an Act of great constitutional significance, and its significance has been enhanced by the coming into operation of Schedule 7. But I do not think that this description, in itself, can be taken to be a guide to its interpretation. The rules to which the court must apply in order to give effect to it are those laid down by the statute, and the statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words mean.” 5 (3) THE LEGISLATIVE COMPETENCE OF THE SCOTTISH PARLIAMENT The competence restrictions in the SA 10. Section 28(1) SA provides: “Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.” Section 28(7) provides: “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
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