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Chamber and committees

Meeting date: Thursday, December 13, 2018

Meeting of the Parliament 13 December 2018

Agenda: General Question Time, First Minister’s Question Time, General Practitioner Out-of-hours Facility (St Andrews), UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (United Kingdom Supreme Court Judgment), Demonstrating Leadership in Human Rights, Pow of Inchaffray Drainage Commission (Scotland) Bill: Final Stage, Pow of Inchaffray Drainage Commission (Scotland) Bill, Parliamentary Bureau Motions, Decision Time


UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (United Kingdom Supreme Court Judgment)

The Presiding Officer (Ken Macintosh)

Our next item of business is a statement by the Lord Advocate on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, referenced by the Attorney General and the Advocate General for Scotland to the United Kingdom Supreme Court. The Lord Advocate will take questions at the end of his statement. I urge those who wish to ask a question, to press their request-to-speak buttons as soon as possible.

The Lord Advocate (Rt Hon James Wolffe QC)

This morning, the Supreme Court handed down its judgment on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Members will recall that I made a statement to the Parliament on the introduction of the bill, setting out the Government’s analysis of the bill and answering questions on it. I am happy to appear again today and to make a statement on the judgment.

The bill was introduced to ensure that, in any scenario, the Scottish Government and this Parliament would have the tools necessary to prepare Scotland, within their devolved responsibilities, for the legislative consequences of leaving the European Union.

The bill was passed by this Parliament on 21 March. On 17 April, the UK Government’s law officers referred the bill to the Supreme Court. That reference meant that the bill could not be presented for royal assent, and, accordingly, could not become law until the reference was determined.

On 20 June, while the reference was pending before the Supreme Court, the UK Parliament passed the European Union (Withdrawal) Act 2018, which received royal assent on 26 June. That act imposes new limits on the legislative competence of this Parliament. In particular, it imposes a new limit that has the effect that an act of the Scottish Parliament cannot now modify the withdrawal act itself, which is now what is called a “protected enactment”. The provision that made that change in the law took effect when the withdrawal act received royal assent.

As a result of that sequence of events, the Supreme Court has had to address two issues. First, was the continuity bill within the competence of this Parliament when it passed the bill? Secondly, has the position been affected by the changes that were made to this Parliament’s legislative competence—after it passed the continuity bill—particularly the new limit that prevents an act of this Parliament from modifying the European Union (Withdrawal) Act 2018 itself?

On the first issue, the Supreme Court has concluded that when this Parliament passed the continuity bill, the bill was, with the exception of section 17, within the competence of this Parliament. In reaching that conclusion, the court has confirmed the constitutional analysis that I and the other devolved law officers advanced in our submissions to the court. It has affirmed this Parliament’s power, subject to the limits on its competence, to prepare the statute book against the UK’s withdrawal from the European Union.

The court has rejected all the submissions that were advanced by the UK Government’s law officers on the first issue, with the exception of one argument in relation to section 17. Section 17 would have required the consent of Scottish ministers before certain subordinate legislation made by ministers of the Crown could take effect in Scotland. The court has concluded that that section would modify section 28(7) of the Scotland Act 1998 and would, for that reason, not be within the legislative competence of this Parliament.

On the second issue, the court has rejected the submission by the UK Government’s law officers that the coming into force of the European Union (Withdrawal) Act 2018 means that the whole continuity bill is now outwith the competence of this Parliament.

However, the court has concluded that, as a result of the new limit on the legislative competence of this Parliament that has been imposed by the withdrawal act, certain provisions of the continuity bill may not now become law. That was a new limit on this Parliament’s competence, which was imposed after the continuity bill was passed and which is contained in the withdrawal bill—a bill to which this Parliament did not consent.

The court has concluded that the following provisions in the continuity bill would modify provisions in the withdrawal act and, for that reason, cannot now become law: section 2(2), section 5, parts of section 7, section 8(2), sections 9A and 9B, parts of section 10, section 11 and certain other provisions in so far as they apply to, or refer to, section 11, section 26A(6), and parts of section 33 and schedule 1. Had the continuity bill become law before the withdrawal bill received royal assent, all those provisions would have survived.

Of those provisions, members will note, in particular, section 5, which would have preserved the charter of fundamental rights in domestic law, and section 11, which would have given the power to fix deficiencies in retained devolved EU law. As a result of the new limits that have been imposed on this Parliament by the withdrawal act, neither of those provisions can now become law, at least in their current form.

The Scottish Government will consider ways in which the values that are reflected in the charter of fundamental rights can continue to be given effect in Scots law, should the UK leave the European Union. As members are well aware, the Scottish Government is fulfilling—and will continue to fulfil—its responsibilities to ready the statute book for withdrawal from the European Union, using the powers in the withdrawal act.

On the other hand, the provisions of the continuity bill that can become law, now that we have the Supreme Court’s judgment, include the powers in section 12 in relation to international obligations, the powers in section 13 to “keep pace” with EU law after exit day and the provisions in section 26A on environmental principles, except the part of section 26A(6) that deals with the approach to the interpretation of those principles.

The Scottish Government accepts the judgment of the Supreme Court in its entirety. The Government will wish to consider the terms of the judgment carefully, and I understand that the Cabinet Secretary for Government Business and Constitutional Relations intends to have discussions with all parties across the Parliament before determining the way forward.

The Presiding Officer

The Lord Advocate will now take questions on his statement.

Adam Tomkins (Glasgow) (Con)

I thank the Lord Advocate for early sight of his statement, and I look forward to the discussions between the cabinet secretary and the parties to which the Lord Advocate referred.

Today’s Supreme Court ruling is a clear, unambiguous and unanimous judicial vindication for those of us who considered the Scottish National Party’s so-called continuity bill to be unlawful.

The Minister for Public Health, Sport and Wellbeing (Joe FitzPatrick)

Absolute nonsense.

Adam Tomkins

As one, the Supreme Court has today ruled that it would be contrary to law for the bill, as passed by Parliament, to proceed to royal assent.

Joe FitzPatrick

That is not what it said.

The Presiding Officer

Order, please.

Adam Tomkins

During the continuity bill’s passage through Parliament, numerous Scottish Conservative amendments—some in my name and some in my colleagues’ names—sought to amend the bill, so that it would be compatible with, not an unlawful modification of, the EU withdrawal act. Those amendments were rejected by Parliament and, as such, the UK Supreme Court has eviscerated the continuity bill, leaving it in tatters. Everything in the bill that is incompatible with the withdrawal act—page after page after page—has been removed by the Supreme Court.

What is left? Is it not the case that all that remains of the always unnecessary bill are provisions that simply, and wholly needlessly, repeat or replicate provisions of the withdrawal act? As such, is it not the case that there is no need for Parliament to reconsider any of the bill? Parliament should bin it.

The Lord Advocate

I will confine my remarks to the legal aspects of the member’s questions; and I will leave political comment to others.

Adam Tomkins

This is the Parliament.

The Lord Advocate

As I explained in my statement, it is important to look at the bill in two stages, as the Supreme Court has done. It is clear that when Parliament passed the bill, the bill in its entirety—with the exception of one section—was within the competence of this Parliament. In the reference, the UK law officers mounted a wholesale attack on the bill. With the exception of the argument about that single section, the attack was comprehensively rebuffed.

After the Scottish Parliament passed the bill—a bill, which had it then come into force, would, with the exception of section 17, have been entirely within the competence of the Parliament—the UK Government invited the UK Parliament to pass the EU (Withdrawal) Act 2018. That was an act to which the Scottish Parliament did not give its consent. That act contains new limits on the powers of the Scottish Parliament and, in particular, makes the withdrawal act a protected enactment.

Jackson Carlaw (Eastwood) (Con)

As it always was.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

Just listen. You are being rude.

The Lord Advocate

That particular provision came into force on royal assent as a result of an amendment made to the EU (Withdrawal) Bill—as it then was—at report stage. As a result of that particular limitation, certain provisions of the bill can now no longer come into force. That leaves important provisions—including the keeping pace power, the environmental principles and the provisions in relation to international obligations—in place. Importantly—this is an important constitutional judgment—the constitutional analysis that I, along with the other devolved law officers, advanced in relation to the devolution settlement was comprehensively sustained by the UK Supreme Court.

The Presiding Officer

Before we proceed, I am conscious that the Lord Advocate has been caught in a bit of crossfire. If SNP members are going to heckle during the questions, it is difficult for me to prevent the Lord Advocate from being heckled in return.

The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)

No, it is not.

The Presiding Officer

I say to the cabinet secretary that the two cabinet secretaries on the front bench are among the worst offenders: you are having a dialogue with the front bench of the Conservative Party, over the Lord Advocate’s comments. We might possibly have a better exchange if we allowed the questions to be asked and the answers to be given. I live in hope.

Neil Findlay (Lothian) (Lab)

As always, I will conduct myself impeccably, Presiding Officer. [Laughter.]

After the week that the Tories have had, I would have thought that Mr Tomkins would have been better to add some humility to his approach, rather than such arrogance.

I thank the Lord Advocate for advance sight of his statement. Scottish Labour, along with the Liberals and the Greens, worked on the continuity bill alongside the Scottish Government. We shared the Government’s ideas and lodged amendments to improve the bill. That work was done constructively, positively and in good faith and we will continue to work in that way to bring about the best outcome from the court’s ruling.

As a result of the subsequent legislation, the court has ruled out important elements of the continuity bill. Will the Lord Advocate advise Parliament what action the Government proposes to take to make the legislation compliant? Crucially, can he tell us what the timescale is for doing that?

No one—certainly not me—questions the integrity of either the Lord Advocate or the Presiding Officer. However, in light of the ruling, has the Government been advised whether the office of the Presiding Officer intends to make a statement on the advice that he was given and that was subsequently given to Parliament?

Last week, the UK Government was held in contempt of Parliament for failing to publish legal advice that it received on an issue of huge constitutional significance. The Scottish National Party supported—very vocally—the call for publication of that advice. In light of that, will the Lord Advocate and the cabinet secretary support a statutory commitment to publish legal advice to the Government on areas of major constitutional change, so that the public is made aware of such advice and can see and scrutinise it? I am sure that the cabinet secretary and his party would not wish to be accused of hypocrisy or having double standards in that regard.

The Lord Advocate

I am grateful to Mr Findlay for that question. He was right to acknowledge at the outset that, in this case, the rules by which competence is judged changed after the Parliament passed the bill.

I understand that the cabinet secretary, Michael Russell, intends to enter into discussions with parties on the way forward next week. As a matter of the Parliament’s standing orders, it is open to the member in charge to bring the bill back to this Parliament for reconsideration with a view to bringing it into compliance with the Supreme Court’s ruling. The cabinet secretary will wish to discuss with other parties whether that is the right way forward—notwithstanding all the things that have happened since the bill was passed by this Parliament—or whether another way forward is right.

On the final question in relation to legal advice, members of this Parliament are well aware of the long-established principle that legal advice is not normally published. Although it is not for me to speak for him, I understand that the cabinet secretary will be happy to discuss that with the member further.

Bruce Crawford (Stirling) (SNP)

The Scottish Parliament, unlike the UK Parliament, decided to keep the charter of fundamental rights after EU exit. It did so, in order that human rights protections would not suffer because of Brexit. Is my reading of the judgment correct—I think that the Lord Advocate has just confirmed this in his statement—that the Supreme Court decided that we were entitled to do just that? However, by passing the withdrawal act, the UK Parliament has overridden that decision and has struck down parts of the continuity bill, particularly, as I said, those regarding the charter of fundamental rights. It is an absolute disgrace that we are in this situation.

The Lord Advocate

The member’s analysis is correct. When this Parliament passed the continuity bill, the provision that preserved the effect of the charter in domestic law was within the competence of this Parliament. As a result of the provision in the withdrawal act to the effect that the charter shall not form part of domestic law on withdrawal from the EU, that provision in this Parliament’s bill can no longer take effect.

Donald Cameron (Highlands and Islands) (Con)

I refer members to my entry in the register of members’ interests—I am a member of the Faculty of Advocates.

The Lord Advocate made reference in his statement to the new limit on legislative competence that was imposed after the continuity bill was passed. Was the Scottish Government aware that, when the European Union (Withdrawal) Bill was introduced to the UK Parliament on 13 July 2017, it contained a clause that specifically amended the Scotland Act 1998 and inserted the bill as a protected provision? As a result, does he agree that the intentions of the UK Government in relation to that point were open, explicit and clear from July 2017?

The Lord Advocate

The UK Government’s withdrawal bill contained such a provision when it was introduced to Parliament. However, in the state of the bill at that time, that provision was to come into force by virtue of a commencement order. In bringing forward the continuity bill, the Scottish Government proceeded on the basis that, if this Parliament withheld its consent from the EU withdrawal bill, the conventional approach, reflected in the Sewel convention, would be applied. At a late stage in the passage of the withdrawal bill—at report stage in the House of Lords on 2 May 2018—the Advocate General for Scotland moved what he described as

“a series of very complex and extensive amendments to the bill.”—[Official Report, House of Lords, 2 May 2018; Vol 790, c 2163.]

Those included the provision that brought the particular provision on royal assent into force. The coming into force of that provision on royal assent was the critical change to the limits of legislative competence, which has led to the decision of the Supreme Court this morning.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

Although it is possible to look in wonder and laugh at the verbal contortions of barrack-room lawyers who questioned the bill’s competence and are now desperately pretending that the Supreme Court has vindicated them, what has been said has serious implications. My question relates to Bruce Crawford’s point on human rights, as well as to the programme of statutory instruments that the Parliament is considering. As the Lord Advocate will be aware, we are having to agree statutory instruments without seeing their content in advance. Does the ruling have any implications on that work and on that process?

The Lord Advocate

I do not think that it will have a direct impact. As the member—indeed, all members—will be well aware, the Government has, as any responsible Government is required to, been carrying out work with a view to readying the statute book against withdrawal from the European Union. It has been using powers in the withdrawal act to that effect and, where appropriate, co-operating with the UK Government to that end. That necessary programme of work is on-going and will continue, and I do not see the Supreme Court’s decision having any immediate impact on it.

James Kelly (Glasgow) (Lab)

One of the difficulties for parliamentarians at the outset of consideration of the continuity bill was that the Presiding Officer and the Lord Advocate, on behalf of the Government, took different views on legislative competence. Has any consideration been given to learning the lessons from what happened by, for example, reviewing the processes and the communication between the two legal teams to try to avoid the Parliament and the Lord Advocate, on behalf of the Government, coming to different legal opinions in future?

The Lord Advocate

As I said in the statement that I made when the continuity bill was introduced, it is important to recognise that the Presiding Officer and I have separate and important constitutional functions in relation to the introduction of any Government bill. Each of us has to approach those functions with care, and I know that, in this case, the Presiding Officer approached the issue with great care and integrity.

In the course of the discussion on my previous statement, I said that the legal issues with which we were dealing in relation to the bill were ones on which reasonable legal minds could disagree. The Presiding Officer formed a judgment, as he is required to do by statute, and I formed mine, as I am required to do by statute. In the normal course of events, discussions take place between the parliamentary authorities and lawyers for the Scottish Government about any Government bill that is introduced to identify any issues and consider whether they can be resolved. I think that parliamentarians may take some comfort from the fact that, as far as I know, this is the first time in the history of this Parliament that the Presiding Officer and the Government have taken different views on a bill’s competence.

The process works well as a matter of routine. It was followed in this case, but, in this case, the difference of view was not resolved. That is bound to happen from time to time when, as we do, we have to deal with what are sometimes difficult legal questions.

Patrick Harvie (Glasgow) (Green)

Given the UK Government’s actions and intentions—intentions that, in my view, were not only clear but clearly malign—I think that the Parliament has a responsibility to try to give effect to the improvements that were made during the scrutiny and passage of the bill. In particular, we need the Lord Advocate’s advice on how best that can be achieved.

In relation to environmental principles, section 26A survives the judgment, with the exception, as the Lord Advocate has said, of subsection (6). However, that subsection is the only link to the environmental principles set out in the EU treaty and their interpretation by the European Court. In the Lord Advocate’s view, is it possible to replace or restore that link in some other way? If we cannot, we risk having an environmental principles section in the continuity bill that could be as vague and woolly as that in the European Union (Withdrawal) Act 2018.

The Lord Advocate

As I said in my statement, the Government will consider the terms of the judgment carefully and will wish to discuss the way forward with all parties across the chamber. I saw the judgment for the first time this morning, as other members did, and I hope that the member will forgive me for not offering a snap legal opinion on the particular and interesting question that he raises.

Tavish Scott (Shetland Islands) (LD)

I thank the Lord Advocate for advance sight of his statement. The judgment confirms that the Scottish bill, as a whole, was not outside the legislative competence of the Scottish Parliament when we voted it through. What is more, the difference between the situation before and the situation after the passage of the UK act gives weight to the view that the UK reduced the powers of this Parliament.

Does the Lord Advocate agree that the UK Government needs to learn from this and make sure that if Brexit does indeed go ahead, the devolved Administrations are fully involved in developing UK-wide frameworks with proper dispute-resolution mechanisms? Will he confirm that section 13 of the continuity bill, on keeping pace with EU law, can be implemented without those sections of the bill that the Supreme Court says have been overtaken by the UK act?

The Lord Advocate

On the first point, the Government’s position is on record. As a law officer I am obviously concerned that the constitutional arrangements under which this Parliament and this Government operate are followed. It is satisfying that the constitutional analysis that was put forward by the three devolved law officers has been accepted by the Supreme Court in its judgment. The member is correct that the keeping pace power would not be outwith competence were it now to become law.

Clare Adamson (Motherwell and Wishaw) (SNP)

The Presiding Officer ruled that the continuity bill was outwith the Parliament’s competence because the Parliament is

“bound to act compatibly with EU law until such point as the Treaties cease to apply.”

He further said:

“this prevents the Parliament from exercising legislative power now, even though it assumes it will be legally able to act in the future.”

Did the Supreme Court judgment agree with the Presiding Officer’s ruling?

The Lord Advocate

As I said in my answer to another question, and as I acknowledged when the Parliament met in February, the question on which the Presiding Officer and I disagreed was one on which reasonable legal minds could disagree. As we both acknowledged in our respective statements, only the court could finally and authoritatively decide that issue, or the other legal issues that arise in relation to the bill. On that particular issue, the Supreme Court has preferred the arguments that I advanced. That should not be taken as a criticism of the Presiding Officer, who has a responsibility to exercise his judgment on the legal issues that arise in the context of bills such as the continuity bill.

Jamie Greene (West Scotland) (Con)

Today’s ruling not only vindicates the Presiding Officer’s decision to question the competence of the bill, or parts of it, but should serve as a reminder to all of us, as legislators, that when we rush legislation through the Parliament, this is where we end up. The Lord Advocate has stated that the Scottish Government will accept the judgment in its entirety and, in answer to a previous question, has stated that there is a possibility that the bill may be brought before the Parliament again in some shape or form. If that is the case, does the Lord Advocate believe that the bill should be subject to the normal, robust three-stage process, with the due scrutiny that every bill that goes through the Parliament deserves, rather than the emergency procedure that rushed the bill through the Parliament in March this year?

The Lord Advocate

As I said earlier, when this Parliament passed the bill, it was, with the exception of one provision, within the competence of the Parliament. The rules changed after the Parliament passed the bill. As to the process that should be followed in any reconsideration or in any future process, that is entirely a matter for the parliamentary authorities. It would not be appropriate for me to comment on that.

Stuart McMillan (Greenock and Inverclyde) (SNP)

The Lord Advocate has mentioned on a couple of occasions the amendment that was made on 2 May to make the UK bill a protected enactment. Did the UK Government make it clear at that time what the effect of that would be on the continuity bill or did it wait until the matter was in the Supreme Court?

The Lord Advocate

When the amendment was made to the withdrawal bill, it formed one of a number of amendments that were presented to the House of Lords as

“a series of very complex and extensive amendments to the bill.”—[Official Report, House of Lords, 2 May 2018; Vol 790, c 2163.]

The issue that the member identified was not specifically drawn to the attention of the House of Lords.

Pauline McNeill (Glasgow) (Lab)

Does the Lord Advocate agree that it is largely an important decision for devolution in this Parliament that, but for those sections and the withdrawal bill, the continuity bill would have survived. As the judgment says, the court rejected all the UK Government law officers’ arguments, except for that on section 17. Does he agree that that is an important constitutional point for devolution?

Could the Lord Advocate provide a preliminary view on whether section 12, on international obligations, provides scope for the replacement of section 5, which—as has been mentioned—has reference to the charter of fundamental rights in domestic law, without which many people who have substantial rights flowing from it could lose out? Could section 12 provide an alternative, and is there an alternative to it?

The Lord Advocate

On the member’s first point, I agree that it is an important legal judgment for the devolution settlement. There is a lot in the fundamental analysis that the court has identified that will be important for this Parliament and for both this Government and the UK Government going forward.

I hope the member will forgive me if I do not give a snap view on the specific point on the use of section 12. As I said in my statement, the Scottish Government will consider ways in which the values that are reflected in the charter can continue to be given effect in Scots law should the UK leave the European Union. There may be various ways in which that might be done.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

The UK Government has lost the Gina Miller case over triggering article 50; it has lost the case brought by Scottish parliamentarians over the revocability of article 50; and now it has lost this case, over whether the Scottish Parliament can choose its own path through the mess of Brexit. Can the Lord Advocate confirm that the UK Government has effectively lost three important pieces of Brexit litigation?

The Lord Advocate

I think that the record speaks for itself when it comes to the decisions of the various courts that have ruled on issues arising from Brexit. It is undoubtedly true that the withdrawal from the European Union has thrown up a number of difficult, important and serious constitutional issues, which have found their way into the courts, and the courts have issued the rulings that they have.

Mike Rumbles (North East Scotland) (LD)

The Supreme Court has said that section 17, the key section of the bill, is outwith the competence of the Scottish Parliament and that it always was. That means that the bill could not have received royal assent on that point alone. We have a politically independent Presiding Officer in our Parliament who, on legal advice, ruled that the bill was not competent. Does the Lord Advocate not accept that it was a mistake to ignore the Presiding Officer’s ruling on competence and to advise the Government to press on with the bill without amendment?

The Lord Advocate

The question of the significance or otherwise of section 17 is a matter on which opinions could differ. It certainly does not go to the heart of the bill in terms of securing legal continuity. Without that section, the remainder of the bill stands in its entirety.

I think that what can be said is that, in the reference, the UK law officers mounted a wholesale attack on the bill in its entirety and, with the exception of that single argument in relation to that single section, the attack has been rebuffed.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

On a point of order, Presiding Officer. Mr Findlay correctly said that, for every bill, you provide a point of view on whether the bill falls within or outwith the competence of the Parliament. I am confident that, in reaching your conclusion on the continuity bill, you would have taken appropriate advice.

Paragraph 7 of the judgment says:

“the Presiding Officer opined that the Scottish Parliament could not seek to exercise competence before that competence had been transferred to it”.

Paragraphs 82 and 83 lay out the respective positions of the UK Government and of the Lord Advocate. However, paragraph 85 states:

“Prospective legislative provision for the consequences of the repeal of the 1972 Act, which has no legal effect until such repeal, entails no modification of that Act. The challenge under section 29(2)(c) of the Scotland Act therefore fails.”

Presiding Officer, given that it has been the judgment of the Supreme Court that we may, in future, legislate for foreseeable events, will you consider—you will not wish to respond immediately, because it is probably a complex issue—whether, in future, it would be appropriate to take advice that might lead to a different conclusion on another occasion?

The Presiding Officer

I thank Mr Stevenson for his point of order. I am interested to note that he not only asked a question but answered it, which was very helpful. [Laughter.]

Mr Stevenson is right: the advice that I offer is offered to all members; it is not offered in support of or in opposition to a bill. It is advice that is taken impartially. It is not a court ruling—the court ruling has been made by the Supreme Court. As Mr Stevenson accurately points out, it will be for me and officials to consider the matter in some depth, which we will do.

I thank the member for his point of order, and I thank all members and the Lord Advocate for the statement and questions.