The UK Government today referred the Scottish and Welsh EU continuity bills to the Supreme Court. The court will now determine whether or not these bills, which provide for the retention of EU law within devolved policy areas, are within the powers of the Scottish Parliament and Welsh Assembly.
It is the role of the Supreme Court to define the limits of devolved competence in difficult cases, so the Government’s decision is perfectly legitimate. However, as the Institute for Government has long argued, the underlying problem is the poor state of relations between the UK and devolved governments over Brexit. And that is a problem that legal conflict will do little to resolve.
The best outcome for all sides remains a negotiated compromise on the terms of Brexit, enabling both sides to step back from the brink. That, in turn, will require a reset of relations between Westminster and the devolved capitals.
Both the Scottish and Welsh governments believe that these bills fall within their legislative competence. But when the bills were passed last month, two distinct views emerged on their competence even within the Scottish Parliament.
The Scottish Parliament’s Presiding Officer argued that the bill was incompatible as Holyrood could not make legislation about prospective powers it might have post-Brexit. However, the Scottish Government took the unprecedented step of pressing ahead with legislation despite the Presiding Officer’s opinion. Defending this move, the Scottish Government’s Lord Advocate argued that any powers incompatible with EU law are explicitly stated not to come into effect before the UK’s membership of the EU is terminated.
Similarly, the Welsh Presiding Officer, the Llywydd, declared that the Welsh continuity bill was within the competence of the Welsh Assembly.
Even before the Scottish Presiding Officer ruling, the possibility of these bills facing a legal challenge was long seen as likely, including by the Institute for Government. If the continuity bills stand, the UK Government will fear a loss of control over the Brexit process, and what the Attorney General today described as the risk of “serious legal uncertainty for individuals and businesses”.
In both Scotland and Wales, a devolved bill can be referred to the Supreme Court within “the period of four weeks beginning with the passing of the Bill.” The UK Government therefore faced a deadline of 18 April to make a referral, failing which the bills would have proceeded to become law.
If the Supreme Court judges these bills within competence, then the devolved executives will have new leverage to pressure the Government into amending to the EU Withdrawal Bill, to which they have consistently refused to grant consent under the Sewel Convention.
If agreement on the EU Withdrawal Bill is reached, then Scottish and Welsh ministers might be willing to drop their continuity bills, but they will extract a price in terms of greater devolved control over powers returning from Brussels.
Alternatively, the UK Government could refuse to amend the EU Withdrawal Bill and simply legislate over the top of the devolved bodies, rendering the Scottish and Welsh bills ineffective despite the court ruling in their favour. But this would be highly controversial and the Government might struggle to gain a parliamentary majority for this.
But the Government could still face problems even if the court rules in their favour. One possible outcome is that the court gives the devolved legislatures the option to amend their continuity bills to bring them back within competence. This would extend the dispute further, at a time when the timetable to implement Brexit is already ambitious.
And even if the continuity bills are struck down in their entirety, this will not help get the EU Withdrawal Bill through. Scotland and Wales are likely to withhold consent in any case, and while legally possible, proceeding without consent would be a risky strategy for Westminster to follow.
A reference of devolved legislation to the Supreme Court is unprecedented in the case of Scotland. There have, however, been three previous Supreme Court cases regarding legislation passed by the Welsh Assembly. The score so far is 2–1 to Wales.
The first case was the Local Government Byelaws (Wales) Bill 2012, which removed the need for a UK minister to confirm certain byelaws. The Supreme Court ruled that the effect on UK ministers was “incidental and inconsequential”. The bill was therefore enacted.
Likewise, the Supreme Court found in favour of the Welsh Assembly with regard to the Agricultural Sector (Wales) Bill (2014). The UK Government considered this to be a question of employment policy, but the court ruled that the bill was primarily concerned with agriculture policy, which is devolved.
The third case related to the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (2015), which the Welsh Government’s own senior lawyer, the Counsel General for Wales, referred to the court in anticipation that it would be challenged through judicial review by private parties. In this case, the court ruled that the bill was not legal.
These cases are helpful in understanding how the process of legal challenge works, but the significance of the present case is on a substantially greater scale. The UK Government may have been embarrassed to lose two cases, but there was no significant impact on the Government’s core objectives. The same cannot be said this time.