- 28 Feb 2018
So far as I know, there is no precedent for a Law Officer making a statement about the legislative competence of a Bill to this Parliament on the introduction of the Bill. However this is an exceptional case; and in this case it is appropriate that, as the Scottish Government's senior Law Officer, I should give a statement about the Bill which was introduced yesterday, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.
You and I are each obliged to consider the legislative competence of any Government Bill.
The Government cannot introduce a Bill unless it is accompanied by a statement that, in the view of the responsible Minister, the Bill is within competence. The Ministerial Code requires such a statement to be cleared by Law Officers.
I can confirm that I cleared the certificate of competence in relation to this Bill.
You, for your part, are also required by the Scotland Act 1998 to decide whether, in your view, the provisions of a Bill are within competence.
Yesterday, you stated your view that the provisions of this Bill are not within the legislative competence of this Parliament. I am grateful to you for the careful and serious consideration which you have given to the matter, and to the way in which you have expressed your conclusions.
In stating that the Government disagrees with those conclusions, I would not wish it to be thought that I am expressing any criticism of you.
Your statement does not prevent this Parliament from considering and, if so advised, passing the Bill. But this is the first time that a Government Bill has been introduced into this Parliament with a negative statement from the Presiding Officer; and in the circumstances, I owe it to the Members of this Parliament, as the Scottish Government's senior Law Officer, to state publicly and in this chamber that the Government is and remains satisfied that this Bill is within the legislative competence of the Parliament.
Members will understand that when I clear a Ministerial statement on legislative competence, I am concerned as you are Presiding Officer only with the question of whether or not the Bill is within the competence of this Parliament. That is a legal question; one which could, ultimately, if necessary, be tested in the courts.
It is to that question that I will address myself in this statement; and I will gladly leave political questions about the Bill – questions which are frankly irrelevant to the issue of legislative competence - to others.
I remind Members that, so far as the Scotland Act is concerned, this Parliament's general legislative competence is constrained by section 29 of that Act.
Unless one of those statutory constraints applies, this Bill would, if enacted, be within the legislative competence of the Parliament.
You have stated in your own assessment of competence that the fundamental question at issue in the case of this Bill is whether it would, if enacted in its present form, be incompatible with EU law.
I respectfully agree that this is the fundamental question; and I accordingly propose to focus on it.
Section 29(2)(d) of the Scotland Act in effect states that a provision of an Act of this Parliament which is incompatible with Convention rights or with EU law is not law.
The purpose of that provision is to ensure that Acts of this Parliament do not breach the United Kingdom's obligations under the European Convention on Human Rights or under EU law. So far as EU law is concerned, the same constraint applies, as long as we are members of the EU, to all public bodies within the UK, including the United Kingdom Parliament.
The question which has to be asked is accordingly whether any provision in this Bill is incompatible with EU law.
The legislative competence of the provisions in the Bill falls to be considered in light of these facts.
First, that the United Kingdom Government has taken steps under Article 50 of the Treaty of European Union to withdraw the United Kingdom from the European Union; and that, by virtue of the terms of Article 50, in the absence of agreement otherwise, the UK will leave the European Union next March.
Second, that EU law will thereupon cease to apply and, on the basis of the Supreme Court's analysis in the Miller case, the EU law constraints on the powers of this Parliament and on Scottish Ministers will cease to have any content.
And, third, that there is an urgent practical necessity to make provision, of the sort contained in this Bill, to enable the law to operate effectively immediately upon and after the United Kingdom's withdrawal from the EU.
Against that background, let me make these observations about the provisions of the Bill.
The legal obligation on Ministers to comply with EU law will endure until the UK leaves the EU. This Bill does not change that obligation.
Ministers will continue to be subject to legal requirements to transpose, implement and otherwise abide by EU law so long as the UK remains a member of the EU. This Bill does not alter those requirements.
The Bill does nothing which will alter European Union law, or which undermines the scheme of EU law, while the United Kingdom remains a member of the EU.
What the Bill does is to make provision for the continuity of the law immediately upon and following withdrawal from the EU.
It does this by two principal mechanisms.
First, it provides for laws in force before the UK leaves the European Union to continue in force in domestic law after departure. To make such a provision is plainly not incompatible with European Union law.
And, secondly, the Bill confers powers which will enable the law to be adjusted, as required, so that the law will continue to work effectively immediately upon withdrawal from the European Union.
The terms of the Bill ensure that its provisions will not come into effect, and those powers cannot be exercised, so as to alter or affect the law before the United Kingdom leaves the European Union if to do that would be incompatible with EU law. So the grant of those powers, and their exercise, in accordance with the Bill, is not, and cannot be, incompatible with European Union law.
In short, the Bill is designed to achieve two things.
First, to enable the continuing effectiveness of the law upon and following the UK's departure from the European Union – in other words, to secure a smooth transition, in a manner which is consistent with the European Union law principle of legal certainty, in the context of a withdrawal process which is itself provided for by European Union law,
And, second, to make sure that this is done in a way which does not involve any breach of European Union law - which does not put the United Kingdom in breach of its obligations under EU law - for as long as the United Kingdom remains a member of the Union.
It is not incompatible with EU law to make provision to deal with the inevitable consequences in domestic law of withdrawal from the EU, in this way. Indeed, that appears to be the basis upon which the United Kingdom Government's own EU (Withdrawal) Bill, upon which this Bill has been modeled, proceeds. If that is right, and if, contrary to the view of the Scottish Government, this Bill is incompatible with EU law, then the same reasoning would apply equally to the UK Government's Bill.
In your assessment of legislative competence, you put your finger on the central point which arises in relation to this Bill. That it contains provisions, and empowers Ministers to make provision by regulations, which, if they were to come into force before the UK leaves the EU, would be incompatible with EU law. You characterise this as involving an exercise of competence before the competence has been transferred.
But the Scottish Government's view is that this Bill is framed to ensure that any provisions which would have that effect can only come into force when the UK leaves the EU. As the Presiding Officer of the National Assembly for Wales has concluded in the context of the Welsh Government's Bill, that makes all the difference and ensures that there is, and can be, no incompatibility between the provisions of this Bill and EU law.
The Bill has been carefully drafted so that it is not incompatible with EU law. Nothing can be done under it which would put the United Kingdom in breach of its obligations under EU law. This is not a case where the Parliament is being asked to exercise a competence before that competence has been transferred to it. Rather this Parliament has competence at this time to deal, in the way that this Bill provides, with the consequences for our domestic law, of leaving the European Union.
Finally Presiding Officer, let me say this. I appreciate that Members have an interest in the legislative competence of this Bill; and I look forward to answering, to the extent that I properly can, questions which Members across the Chamber may have.