Chamber and committees

The Scottish Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (‘the Continuity Bill’) on 21 March 2018 by 95 votes to 32. On 17 April 2018, the Attorney General for England & Wales and the Advocate General for Scotland referred the Continuity Bill to the Supreme Court under section 33 of the Scotland Act 1998. While the Reference was pending before the Supreme Court, the UK Parliament passed the EU (Withdrawal) Bill and that Bill received Royal Assent as the EU (Withdrawal) Act 2018 (‘the Withdrawal Act’). Upon Royal Assent, the Withdrawal Act amended the Scotland Act 1998 in terms which meant that it would not be within the legislative competence of the Scottish Parliament to modify the Withdrawal Act.

The question for the Supreme Court was whether the Bill would be within the legislative competence (that is, the powers) of the Scottish Parliament. The case raised significant issues of general importance for the legislative competence of the Scottish Parliament, including the scope and effect of a number of reserved matters and the extent to which an Act of the Scottish Parliament is susceptible to challenges on common law grounds.

The case was heard by the Supreme Court on 24 and 25 July 2018. The court comprised Lady Hale (President of the Supreme Court), Lord Reed (Deputy President), Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge, and Lord Lloyd-Jones.

As the respondent to the Reference, the Lord Advocate, both in his written case and during the hearing, presented arguments supporting the conclusion: (i) that it was within the legislative competence of the Scottish Parliament to prepare for the consequences for devolved matters of UK withdrawal from the European Union; and (ii) that the Bill would be within the legislative competence of the Scottish Parliament. He addressed the range of significant issues which the case presented. The Lord Advocate was supported by a team of counsel.

The Supreme Court handed down its unanimous judgment on 13 December 2018. This judgment confirmed: (i) that, subject to the provisions of the Withdrawal Act, it would be within the legislative competence of the Scottish Parliament to prepare for the consequences for devolved matters of UK withdrawal from the European Union; (ii) that, with the exception of one section, the Continuity Bill would have been within the legislative competence of the Scottish Parliament at the time when it was passed; but (iii) that, as a result of the Withdrawal Act, parts of the Continuity Bill would no longer be within the legislative competence of the Scottish Parliament.

Details of expenditure incurred in relation to the Supreme Court case is set out in the following below. The external legal fees include fees of counsel and solicitors.

The Lord Advocate's expenses are not included, as Ministerial costs are routinely published by the Scottish Government. The cost of internal legal advice is not included as that is provided by Government lawyers who are civil servants as part of their normal duties supporting Scottish Government Ministers; and in line with usual practice, details of individual tasks carried out by civil servants, including the number of hours spent on them are not recorded, because there is no business need to do this.