Continuity and Confusion: Towards Clarity? - The Supreme Court and the Scottish Continuity Bill

The Supreme Court has now handed down its judgment in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A reference by the Attorney General and the Advocate General for Scotland. The Bill marked a series of firsts: a consequence of the first UK statute to be passed notwithstanding the refusal of consent by the Scottish Parliament (the European Union (Withdrawal) Act 2018); the first Scottish Government Bill to be introduced with a negative statement of competence by the Presiding Officer; and, the first Scottish Bill to be referred to the UK Supreme Court by the UK Law Officers. In previous posts we have set out what it was (legally and politically) that the Bill sought to achieve and why, in our view, the Bill as introduced arguably was (in light of the Presiding Officer’s contrary view) within the legislative competence of the Scottish Parliament. The Court’s analysis was split into two stages. First, was the Bill within competence when it was passed? The Court said yes, with the exception of a single section discussed below. Secondly, would the Bill be within competence when it receives Royal Assent in light of the intervening effect of the EU (Withdrawal) Act? Again, the Court said yes, but ruled that many of the Bill’s most important and distinctive provisions would now fall outside legislative competence.

Here we set out the key parts of the judgment as they relate to the health of the Bill itself and to the assessment of legislative competence more generally, and we also consider what might come next.