The UK Withdrawal From The European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland

This case concerned the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which was passed by the Scottish Parliament on 21 March 2018. The Bill was designed to provide for domestic legal continuity after the UK's withdrawal from the EU on exit day. The Scottish Parliament passed the Scottish Bill on 21 March 2018. This resulted in the reference to the UK Supreme Court under section 33(1) of the Scotland Act 1998 as amended ("the Scotland Act") which provides that the Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision. The reference was made within four weeks of the passing of the Scottish Bill in accordance with section 33(2) of the Scotland Act. The UK Law Officers referred the question of whether the Scottish Bill would be within the legislative competence of the Scottish Parliament to the Supreme Court. The court was required to determine as a matter of law whether and to what extent the Scottish Bill would be within the legislative competence of the Scottish Parliament. The court concluded that the Scottish Bill as a whole would not be outside the legislative competence of the Scottish Parliament because it did not relate to reserved matters. However, section 17 of the Scottish Bill would be outside the legislative competence of the Scottish Parliament because it would modify section 28(7) of the Scotland Act. Section 33 of and Schedule 1 to the Scottish Bill would not be outside the legislative competence of the Scottish Parliament on the basis that they would modify provisions of the Scotland Act. The specific provisions of the Scottish Bill listed would not be outside the legislative competence of the Scottish Parliament because they were not incompatible with EU law, they did not modify the European Communities Act 1972, and they were not contrary to the rule of law. However, as a result of the enactment of the UK Withdrawal Act, the following provisions of the Scottish Bill would at least in part be outside the legislative competence of the Scottish Parliament: sections 2(2), 5, 7(2)(b) & (3), 8(2), 9A, 9B, 10(2), (3)(a) and (4)(a), 11, 13B, 14, 14A, 15, 16, 19(1), 22, 26A(6), 33(1), (2) & (3) and Schedule 1 paragraphs 11(a) and 16.