Why did the Counsel General intervene in the Supreme Court?

Published 03/08/2018   |   Last Updated 27/05/2021   |   Reading Time minutes


On 17 April 2018, the UK Government's Law Officers, the Attorney General and the Advocate General for Scotland, referred EU exit legislation passed in the Scottish Parliament, The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Continuity Bill”), to the Supreme Court for a ruling on whether it is within devolved legislative powers. The case was heard on 24 and 25 July.

The Counsel General’s intervention

On 7 June 2018, the Counsel General published a written statement announcing that he had made an application to the Supreme Court for permission to participate in the reference of the Scottish Continuity Bill. On 3 July he made another statement in Plenary to announce that his participation in the proceedings, along with the Attorney-General for Northern Ireland, had been confirmed.

The Assembly also passed its own “continuity” legislation, the Law Derived from the European Union (Wales) Act 2018 (“the Act”), on 21 March 2018. However, the Welsh Government has undertaken to repeal it, following changes to the European Union (Withdrawal) Act 2018 and an inter-governmental agreement with the UK Government. The Counsel General argued that his participation in the case was not related to the Act, he said the reason for it was that:

the issues raised by the Attorney-General and the Advocate General for Scotland in their case raise questions regarding all of the devolution settlements in the UK and are not all limited to the Scottish Bill nor to the Scottish devolution settlement. So, our participation in the Scottish case before the Supreme Court touches upon these issues that extend beyond the Scottish settlement and that relate to the future functioning of the UK after Brexit, where it is vital that Wales has a voice.

The arguments

The Counsel General had filed his written case with the Supreme Court on 16 July 2018. It addressed four main points:

  • the impact of leaving the EU on the competence of the Assembly. The Counsel General contended that leaving the EU will see all those powers in devolved areas which currently sit with the EU, for example in relation to agricultural support, no longer being constrained by EU law. As the Supreme Court itself noted in the case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant), withdrawal from the EU will enhance the devolved legislatures’ competence. According to the Counsel General, it is for the Assembly to determine where, if at all, it wishes to ‘pool’ any of those powers through common UK wide frameworks.
  • the legislative practicalities of withdrawal. The Counsel General argued that legislating for the domestic consequences of withdrawal from the EU, where those consequences relate to matters which are not reserved, falls squarely within the legislative competence of the Assembly and not within the international relations reservation.
  • the Assembly’s powers. The Counsel General contended that it is perfectly within the Assembly’s competence to legislate in advance of exit in order to make the changes which need to be in place from day one after the UK leaves the EU.
  • the scope of the courts’ common law power to review Assembly legislation. The Counsel General argued that the Supreme Court made it clear in Axa General Insurance Ltd. v. The Lord Advocate [2011] CSIH 31 that where the democratically elected devolved legislatures act within the scope of the devolution frameworks laid down by Parliament, their acts are reviewable by the courts only on very limited grounds, and only where fundamental rights or the very essence of the rule of law is at stake. The Counsel General did not consider the Scottish Continuity Bill to be legislation of that extreme kind.

The proceedings

The reference to the Supreme Court was made by the Attorney General and the Advocate General for Scotland. The current Advocate General for Scotland is Lord Keen of Elie and he led the UK Government’s case. Referring to the UK Withdrawal Act, Lord Keen said it was "perfectly clear" that the Scottish bill was "directly inconsistent with the UK Act at the most basic of levels", saying "the two simply cannot stand together".

He told the court that this would create "dual and inconsistent regimes" within the UK, which would directly frustrate the purpose of the UK EU (Withdrawal) Act 2018, which was to create a single cohesive body of EU laws retained after Brexit.

He also argued that the Scottish Continuity Bill could have an effect on international relations, a field reserved to the UK parliament. He said that "withdrawal from the EU is a matter for the UK Parliament, and the devolved administrations do not have a parallel legislative competence" in this area.

His written argument stated:

The effect of what the Scottish bill does is to make provision for the future relationship with the EU and EU law when that relationship is under negotiation. That could serve to undermine the credibility of the UK's negotiating and implementation strategy in the eyes of the EU.

Lord Advocate James Wolffe QC, the Scottish Government’s chief law officer, put the case for the Scottish Continuity Bill being within legislative competence. He rejected the UK Government's argument that the Scottish Parliament was seeking to cut across Westminster's authority in international negotiations, insisting that EU law was "not a reserved matter".

The Lord Advocate said the Scottish Continuity Bill "has effect only in the domestic legal order … it cannot affect the UK's negotiations with the EU".

The Counsel General did not appear in Court himself. The Welsh Government’s case was put by Michael Fordham QC who said that the UK's position that devolved administrations could not legislate in devolved areas currently managed by the EU because they touch on international treaty negotiations was an "extravagant claim which has very alarming logical implications". Mr Fordham said this would limit the powers of devolved parliaments even after the UK leaves the EU and European law is transferred into UK law.

Northern Irish Attorney General John Larkin argued that "the bill and all of its provisions are within the legislative competence of the Scottish Parliament".

However, delivering a response at the conclusion to the hearing, Lord Keen argued on behalf of the UK Government that "it was not open to the Scottish Government and the Scottish Parliament to assume that no new legislative constraints" would be introduced as a result of Brexit. He said it was "a matter for the UK Parliament to determine where areas of current EU competence may appropriately lie". The Advocate General also insisted that "withdrawal from the EU is unquestionably a matter of international relations" because the post-Brexit statute book will be "inextricably bound up with the issue of withdrawal itself ". The Supreme Court’s ruling is expected in early autumn.

Article by Alys Thomas, National Assembly for Wales Research Service