The Supreme Court and devolution : the Scottish Continuity Bill reference

McCorkindale, Christopher and McHarg, Aileen (2019) The Supreme Court and devolution : the Scottish Continuity Bill reference. Juridical Review, 2019 (2). pp. 190-197. ISSN 0022-6785

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The Scottish Continuity Bill reference – the first legislative competence dispute between the UK and Scottish Governments to reach the courts – took place against the background of a protracted political battle over what is now the European Union (Withdrawal) Act 2018 (“the Withdrawal Act”). That Act regulates the domestic consequences of the UK’s withdrawal from the European Union (“Brexit”) by: providing for the continuity of EU law post-Brexit (“retained EU law”); empowering ministers to adjust the statute book to deal with deficiencies arising from Brexit; and adjusting the scope of devolved competences in light of the “repatriation” of decision-making powers from the EU. Unhappy with the way in which the then Withdrawal Bill affected devolved competences, the Scottish Parliament withheld its legislative consent, as was required under the Sewel Convention. On the assumption that this would mean that the Withdrawal Bill would be amended so as not to apply to devolved matters in Scotland, the Scottish Parliament intended to fill the resulting lacuna by enacting its own Brexit legislation. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the “Scottish Continuity Bill”) thus provided for EU law to remain in effect in relation to devolved matters after exit day (“retained (devolved) EU law”), and gave the Scottish Ministers powers to adjust the devolved statute book in the light of Brexit. In so doing, it largely mirrored the provisions of the Withdrawal Bill, but with some important differences. In the event, the Withdrawal Bill was not amended, and – in another constitutional first – it was applied to devolved matters in Scotland despite Holyrood’s refusal of consent.