One for the Wet Towels ~ Scotland's Legal Continuity Bill

Update 13 December 2018:  The Supreme Court held that Scotland's Legal Cotinuity Bill is not generally outside the powers of the Scottish Parliament but certain provisions are.  In particular section 17 was outside the competence of the Scottish Parliament.   See the Court's judgment and Press Summary.

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"It's one for the wet towels," said Lady Hale at the conclusion of the oral hearings in the Reference by the Attorney-General and Advocate General for Scotland on the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill.

Here is a case for lovers of byzantine legal complexity to savour.

Fundamentally, the Scottish Parliament was created by the Scotland Act 1998 and it only has the powers granted to it by the Scotland Act 1998 as amended.  If it is claimed that Scottish legislation is outside the powers of the Scottish Parliament then reference can be made to the Supreme Court of the UK to determine whether the legislation is within devolved legislative powers.


This is what has happened with Scotland's European Union (Legal Continuity)(Scotland) Bill 

In many ways, the Bill mirrors the UK Parliament's European Union (Withdrawal) Act 2018 - "the 2018 Act.".  So, why did Scotland consider that it needed its own Bill?  The reasons are explained at Brodie's - Continuity Bill: Part 1 and also see the Supreme Court blog -  Case Preview

The detailed grounds for making the reference are set out in the Advocate General's Written submission  where it is argued that the entire Scottish Bill is outside the competence of the Scottish Parliament.   See also the Lord Advocate's response - Lord Advocate

There are interventions from the Attorney-General for Northern Ireland and the Counsel General for Wales.

The Supreme Court heard detailed oral submissions over 24 and 25 July and reserved its judgment.

Scotland did not give legislative consent to the European Union (Withdrawal) Act 2018

Further reading:


Institute for Government - 6 March

Brodies 9 March 2018 - Can the Scottish Parliament enact the Continuity Bill

Institute for Government - 17 April

UK Constitutional Law - Continuity and Confusion  Part 1 - 6 March

UK Constitutional Law - Continuity and Confusion Part II - 7 March

UK government - Devolution of Powers to Scotland, Wales and Northern Ireland

Wales:

Note the Law Derived from the European Union (Wales) Act 2018.   This Act will be repealed on 3 October 2018 - HERE. The Act - section 22 - contained a provision enabling Welsh Ministers to make Regulations to repeal the Act or any provision of the Act.

Wales gave legislative consent to the European Union (Withdrawal) Act 2018