THE devolved legislatures of Scotland, Wales and Northern Ireland stood together in the UK Supreme Court yesterday to defend the right of the Scottish Parliament to pass the Continuity Bill that is aimed at preventing a power grab by the Tory Government in Westminster.
In the second day of submissions to the court, Lord Advocate James Wolffe QC was supported by the Welsh Counsel General and the Attorney General for Northern Ireland as he asserted that the Scottish Bill was “perfectly practical”.
READ MORE: A solid case well put by Lord Advocate ... but is it enough?
Seven Supreme Court justices heard the case brought by Westminster against Holyrood. They were led by Lady Hale, the UKSC President, and included two Scottish judges, Lord Reed and Lord Hodge. At the conclusion Lady Hale hinted there could be some time before a judgement is issued as she spoke of “this complicated matter”.
In this crucial constitutional case the Westminster Government is challenging the legality of Scottish Parliament’s Continuity Bill, in an attempt to grab back powers that are returning from the European Union at Brexit and which the Scottish Government says should go straight back to Holyrood as they concern devolved matters.
The UK Parliament’s EU Withdrawal Act passed late last month states those powers should go back to Westminster.
READ MORE: Lord Advocate: UK Government lawyers ‘wrong’ on devolved powers
On Tuesday, the Advocate General for Scotland, Lord Keen of Elie QC, the former Scottish Conservative chairman, argued the UK Government’s case saying that the Scottish Bill “cannot stand” because “the UK Parliament is sovereign, the Scottish Parliament is not”. He also said the Scottish Parliament had no powers on international relations.
Yesterday it was the turn of the Lord Advocate of Scotland, James Wolffe QC, to make his submissions on behalf of the Scottish Parliament. The Lord Advocate argued that Lord Keen was drawing too wide a definition of international relations.
He said EU law “is not a reserved matter”, saying that because the bill “has effect only in the domestic legal order, it cannot affect the UK’s negotiations with the EU”.
The Lord Advocate submitted that it was “perfectly practical” for the Scottish bill to prepare the statute book “in anticipation” of the UK leaving the EU, something he said was not “hypothetical” but was a known event which would soon come to pass.
Noting that this is the approach the UK Government has taken, he said it was “plainly” not incompatible with EU law, which he said prized “legal certainty and continuity”.
READ MORE: What should we expect from the Supreme Court Brexit showdown?
He emphasised that the Scottish bill was passed months before the Withdrawal Bill became law, saying that “it was not intended to modify the UK bill and could not do so”.
The Welsh Assembly passed a similar continuity bill before reaching a compromise with the UK Government in April but due to concerns about future devolution problems, the Welsh Government backed the Scottish Government to the hilt.
Michael Fordham QC, acting on behalf of the Counsel General for the Welsh Government, had stated in his written submission: “I contend 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.”
In court he said that Lord Keen’s claims about the bill cutting across the reserved field of international relations were “wrong and incoherent”, and the baseline for consideration should be that all devolved legislatures “already have competence”.
He added that the UK Government’s position that only it could handle devolved areas because international relations are a reserved matter was an “extravagant claim which has very alarming logical implications”.
Support also came from John Larkin QC, the Attorney General for Northern Ireland, who called the Scottish Bill “most elegantly and adroitly drafted” and would have “teeth gnashing in Whitehall”. He insisted “The Scottish Parliament has done its work … The attribute of competence is something that belongs to the Scottish Parliament”.
READ MORE: UK's lawyers stress 'sovereignty of Westminster' as crucial power grab case begins
Advocate General Keen returned to reply for the UK Government.
He said leaving the EU had not been envisaged when the Scotland Act was drawn up and there could be no assumption that EU powers in devolved matters will revert to the Scottish Parliament. He added that the Scottish Bill relates to EU withdrawal, which it is not within the Scottish Parliament’s competence.
He added that it was “a matter for the UK Parliament to determine where areas of current EU competence may appropriately lie” and insisted that “withdrawal from the EU is unquestionably a matter of international relations”.
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