Guest blog – A Continuity Bill in the Scottish Parliament?

As with all guest blogs, what follows are the views of the author, Professor Sionaidh Douglas-Scott, and not those of SPICe or indeed the Scottish Parliament.

  1. Why is a Scottish Continuity Bill being considered?

On 10 January, it was announced that the Scottish Government intends, if necessary, to introduce a Continuity Bill to prepare Scotland’s laws for Brexit. This followed the finding, by the Scottish Parliament cross party Finance and Constitution committee, that the EU Withdrawal Bill (EUWB), currently making its way through Westminster, was ‘incompatible with the devolution settlement’ and thus the Scottish Parliament should not give its legislative consent to it. Where UK legislation touches on devolved matters (as the UK Government has admitted is the case with the EUWB), a legislative consent motion (LCM) is required from the Scottish Parliament.

Now the EUWB is itself a ‘Continuity Bill’ for the whole UK, as it is designed to convert EU law to UK law, so there will be no glaring gaps in UK law on Brexit day. It is also designed to repeal the European Communities Act 1972, and sets out a process for repealing or amending ‘retained’ ex-EU law by secondary legislation, to make it fit for domestic use. However, it is Clause 11 of the EUWB, and its Schedules 2 & 3, dealing with the devolution aspects of withdrawal, which has upset the devolved nations and prompted the call for a specific Scottish Continuity Bill (and a Welsh one). Clause 11 states that devolved authorities will have an inability to act in areas of retained ex-EU law, unless an Order in Council is made providing otherwise. This is because the approach taken by the UK Government is that even with devolved powers, such as agriculture and the environment, the ‘repatriation’ of EU law will first return former EU competences to Westminster and then decisions will be made as to where they should go from there. This appears to violate the devolution settlement, depriving devolved institutions of powers that would have returned to them by default on withdrawal. As a result, in a joint statement, First Ministers Nicola Sturgeon and Carwyn Jones described the Bill as ‘an attack on the founding principles of devolution…

As the EUWB made its way through Westminster last Autumn, amendments were proposed to Clause 11 by the Welsh and Scottish Governments and others. None were successful. In the absence of any amendment, the required LCMs to the EUWB are unlikely be forthcoming. Furthermore, the UK Government has failed to propose amendments to Clause 11 in time for its report stage in the Commons, in spite of assurances that it would do so. It is this that has led Michael Russell MSP, to say: ‘Unless significant changes are made, we will not be able to recommend giving consent to the EU Withdrawal Bill, and therefore we have no choice but to pursue the option of our own legislation – a Continuity Bill for Scotland.’

It appears that both the Scottish and Welsh Governments have already prepared Continuity Bills, and the suggestion is that such a Bill might be introduced as soon as late January for legislative scrutiny in Holyrood.

Several questions arise regarding the possible introduction of a Continuity Bill in Scotland.

  1. What form and content might a Continuity Bill take?

a) Form

We can compare a Scottish Continuity Bill to the EUWB itself, as it would be a mechanism for ensuring that EU law is incorporated into devolved law, and very likely also, like the EUWB, supply mechanisms for (devolved) ministers to amend and correct retained EU law to ensure it is operable post Brexit. There is nothing so remarkable about legislation seeking continuance of former laws following a change of regime. For example, when the Irish Free State came into being, Art 72 of the Irish Constitution stated that the laws in force in Ireland at the time when the Union was dissolved were to ‘continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’. Had Scotland voted for independence in the 2014 Referendum, section 34 of the Scottish Independence Bill provided that all the laws that were in effect before independence were to continue to have effect after independence and until such times as the independent Scottish Parliament might choose to change or repeal those laws.

However, in the context of Brexit, problems arise because of the interplay of EU, UK and Scottish law. Not only are competences divided between EU, UK and Scottish law, but they are divided in complex, unstraightforward ways, which deny a simple division of powers. The existence of directly effective EU law, such as regulations, which take effect without the need for any national law, has further complicated the situation, necessitating clauses in the already complex and obscure EUWB to make provisions for such laws which have no distinct existence in national law. A Scottish Continuity Bill would, presumably, have to make similar provision for directly effective EU law falling within its devolved competence.

Further, if a Continuity Bill provides mechanisms for devolved ministers to amend and correct retained EU law to ensure it is operable post Brexit, there is the question of what form such delegated powers will take. Will they include so-called ‘Henry VIII’ clauses, namely the power to amend and repeal primary legislation by ministerial order? If so, as with the EUWB, such powers are likely to prove highly controversial, and subject to calls for increased parliamentary scrutiny, which may be very hard to fulfil.

A final question on form is whether a Scottish Continuity Bill would affirmatively enact legislation giving effect (as Scottish law) to the substance of EU law (falling within its devolved competences) as EU law evolves, rather than freezing its content on exit day (which is the approach taken by the EUWB). In this way, EU law would continue to apply in Scotland as to devolved matters as EU law evolves after UK withdrawal. Such legislation would, however, be more difficult to draft, and need to enact the necessary instruments to give affirmative effect to future EU rules.

b) Content

But the main problem in drafting a Scottish Continuity Bill would be to identify the categories of EU law that it would incorporate into devolved law. The Scottish Parliament may only legislate within its areas of devolved competence. The Scotland Act 1998 Schedule 5 does not list devolved powers, but instead specifies the powers reserved to Westminster and the UK Government. The key issue is to identify which areas of devolved competence overlap with EU competences under the EU treaties. Schedule 5 of the Scotland Act provides a starting place, but this is a messy and complex area, and lines of division are not clear. The UK Government in 2017 provided the Scottish Government with a list of 111 areas it had identified where powers currently residing with the EU intersect with the devolution settlement in Scotland. But ‘intersection’ does not necessarily mandate competence in legislation for Scotland.

For example, justice and policing are devolved. However, foreign affairs and relations between the UK and EU are reserved, and it is the UK Government that will negotiate the future relationship between the UK and EU, with the Scottish Government having minimal input. What will happen to the many, many police and justice arrangements, such as the European Arrest Warrant, or recognition and enforcement of judgements, in which the UK currently participates under the EU treaties, but for which, if they are to continue, new agreements would have to be negotiated, presumably a matter for the UK government, even although Scotland has its own legal system?  How would a Continuity Bill handle such matters?  Furthermore, agriculture is a devolved matter and an EU competence – and one of the clearest areas in which devolved competence could exist over future retained EU law. But its finance is not devolved. How would the funding of agricultural policy be squared with the competence over agriculture in a Continuity Bill? One can imagine mechanisms for this – eg use of the Barnett formula as at present. But this does not make for simple, straightforward legislation.

Further, would Scotland wish to retain the Charter of Fundamental Rights, presently specifically excluded from the EUWB? The Charter’s inclusion was the object of failed amendments at committee stage in the House of Commons. Although the Charter’s field of application is quite complex, it clearly applies to member states when acting within the scope of EU law and Scottish legislation must, therefore, presently comply with it, when concerning areas falling within the scope of EU law, for example in fishing or agriculture. The Charter has a wider scope than the ECHR and covers more rights. For example, its chapter on Solidarity contains many social rights and principles not to be found in the ECHR. The Charter also provided the basis for the right to be forgotten elucidated by the European Court of Justice in the Google case. The Charter’s retention might be perceived as attractive in terms of adherence to a more progressive, up to date, Bill of Rights than that of the ECHR. But to continue to apply it via a Continuity Bill would mean not only a different human rights regime for Scotland and England, but different human rights regimes in Scotland, depending on whether the law in question were reserved or devolved.

There are other matters to be considered if a Continuity Bill were adopted. What would be the status of judgements of the European Court of Justice in Scotland post Brexit in devolved areas? Would they be the same as those provided for in Clause 6 EUWB, (namely not binding after exit day, but UK courts may ‘have regard’ to them)? If Scotland were to give greater (or lesser) deference than Clause 6, Scotland could be faced with a 2-tier system, whereby ECJ judgements had one status in devolved areas and another, in matters such as trade, which are reserved to the UK Government.

The complexities of identifying clear categories of competence for a Scottish Continuity Bill are not insuperable, but do render its drafting a difficult task, and raise rule of law questions in so far as they are likely to render law unforeseeable, unclear and untransparent due to even greater complexity within a post-EU situation. However, the drawing of difficult distinctions will be made in any event by the EUWB.  Perhaps one way to deal with this issue would be for a Continuity Bill to deny effect in Scotland to any Westminster or UK Government action that impinged on a devolved matter until the relative competence is determined by a consultation process spelled out in the Continuity Bill.  The Continuity Bill could also designate which Scottish officials are authorized to deal with the central authorities.

  1. Timing/Process:

There are further procedural issues to be considered.

Timing is tight. Any Continuity Bill would need to be enacted before the EUWB is itself passed, otherwise the EUWB could pre-empt the work of a Continuity Bill and alter the devolution settlement. So a Continuity Bill’s passage would have to be expedited. Standing Orders make provision for the passing of emergency legislation in the Scottish Parliament. However, not only are these rarely used, but any such speed may undermine the requirement of effective scrutiny of a complex Bill – a criticism frequently made of the EUWB itself (which has not been treated as emergency legislation). The Presiding Officer would need to be satisfied that the Bill fell within the Parliament’s legislative competence (and defining the scope of that competence is difficult, as already suggested) although a finding that the legislation was beyond competence would not necessarily prevent a Continuity bill from being introduced, although would render its passage difficult.

  1. If a Continuity Bill is adopted what then?

Any Continuity bill might well face a legal challenge. The Scottish Government is likely to argue that Continuity legislation related only to devolved powers and that it was acting within competence. However, the UK Government might disagree and challenge the legislation in court. The Supreme Court has a ‘devolution jurisdiction’ under s. 40(4)(b) Constitutional Reform Act 2005.

Any challenge could come during the four week period between the Bill passing and being given Royal Assent. A challenge could come from the UK Government on the competence of the legislation or the Scottish Government could seek an opinion on whether the enacted Bill was competent.

There has never been a challenge to Scottish Parliament legislation in the Supreme Court through the Government referral mechanism, though there have been challenges to Welsh Assembly legislation in the Supreme Court and in at least one case, In re Agricultural Sector (Wales) Bill [2014] UKSC 43, the legislation was upheld.

To be sure, given the previous different structure of Welsh devolution legislation (but the Wales Act 2017, about to come into force, introduces a reserved powers model of legislative competence similar to Scotland), it is not clear how relevant these Welsh cases may prove. But they do set a precedent of sorts.

  1. Could the UK Parliament press on regardless in the face of a Continuity Bill and rely on its general sovereignty to pass the EUWB?

Even if a Scottish Continuity bill were upheld in the courts, it would still be open for the UK Government to enact the EUWB for the whole of the UK on the basis of s 28(7) of the Scotland Act, which states: ‘This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. The UK, as a sovereign Parliament, may override legislation passed by devolved legislatures.

Of course, this would not be a happy situation. The UK Parliament would be overriding a competing Scottish Bill in devolved territory, and would also be enacting the EUWB in the absence of an LCM from the Scottish Parliament, and thus ignoring the Sewel convention that Westminster would not normally legislate over devolved matters without the consent of the Scottish Parliament (now, of course, set out on a statutory basis by means of s2 Scotland Act 2016). To be sure, in Miller, the Supreme Court unanimously held that constitutional conventions, such as Sewel, are political in nature, and not enforceable by the courts. But it is still a grave matter politically to ignore a constitutional convention, and so act unconstitutionally.

Therein lies perhaps the real utility of a Continuity Bill: in pushing the UK Government into a situation where it must either permit devolved nations to retain control of retained EU law in devolved areas, or explicitly override a Continuity Bill and/or the devolution settlements without their consent.

Furthermore, it is not inconceivable that such a political quandary might affect the attitude of the House of Lords when it comes to scrutinize the EUWB. For example, might the House of Lords refuse to allow the EUWB to come into force with Clause 11 unamended, and an LCM refused? In such a situation, the UK Government would not be able to use the Parliament Acts to force the EUWB through, given that the current extended Westminster Parliamentary session is not due to expire before the (possible) exit date of 29 March 2019, and 2 separate sessions are needed for the Parliament Acts to function to enable legislation to be adopted without the consent of the House of Lords.

  1. Conclusion

The successful adoption of a Continuity Bill could lead to different regimes in Scotland (and Wales?) and rUK/England regarding retained EU law. This is not such a strange set of affairs. Scotland already has a different legal system from England. Furthermore, the development of different policies within different parts of the UK complies with the logic of devolution. Within its devolved competences, Scotland is free to enact its own legislation, according to its own policies and objectives, providing it complies with the requirement of the devolution legislation. However, this does make for a complex piece of legislation and even more complex state of affairs regarding retained EU law. The EUWB is already highly complicated and obscure. Further devolved Continuity Bills would complicate this situation still further. At present, the greatest value of a Continuity Bill may be the political pressure it might exert on the UK Government to amend Clause 11 EUWB and so make it possible to adopt the EUWB with the Scottish Parliament’s consent.

Professor Sionaidh Douglas-Scott, Anniversary Chair in Law at the Queen Mary School of Law, University of London