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, accordingly, it is appropriate that, as the Scottish Government’s senior law officer, I should give a statement about the bill that was introduced yesterday: the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.
Presiding Officer, 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, and 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 the bill are within competence. Yesterday, you stated your view that the provisions of the bill are not within the legislative competence of the Parliament. I am grateful to you for the careful and serious consideration that you have given to the matter and for 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. However, this is the first time that a Government bill has been introduced to the Parliament with a negative statement from the Presiding Officer. In the circumstances, I owe it to the members of the Parliament, as the Scottish Government’s senior law officer, to state publicly and in this chamber that the Government is and remains satisfied that the 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 the bill is within the competence of the Parliament. That is a legal question, and one that 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 that are, frankly, irrelevant to the issue of legislative competence—to others.
I remind members that, as far as the 1998 act is concerned, the Parliament’s general legislative competence is constrained by section 29 of that act. Unless one of those statutory constraints applies, the bill would, if enacted, be within the legislative competence of the Parliament.
Presiding Officer, 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 European Union law. I respectfully agree that that is the fundamental question and I accordingly propose to focus on it.
Section 29(2)(d) of the Scotland Act 1998 in effect states that a provision of an act of this Parliament that 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 UK Parliament. The question that must be asked is, accordingly, whether any provision in the bill is incompatible with EU law.
Presiding Officer, the legislative competence of the provisions in the bill falls to be considered in the light of the following facts. First, the United Kingdom Government has taken steps under article 50 of the Treaty on European Union to withdraw the United Kingdom from the European Union, and by virtue of the terms of article 50, in the absence of agreement otherwise, the UK will leave the European Union next March. Secondly, 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 the Scottish ministers will cease to have any content. Thirdly, there is an urgent practical necessity to make provision of the sort that is contained in the bill to enable the law to operate effectively immediately upon and after the UK’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. The 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. The bill does not alter those requirements. The bill does nothing that will alter EU law or undermine the scheme of EU law while the UK 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 European Union. It does this by two principal mechanisms. First, it provides for laws that are 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. Secondly, the bill confers powers that 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 EU law.
In short, the bill is designed to achieve two things. The first is 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 that is consistent with the European Union law principle of legal certainty in the context of a withdrawal process that is itself provided for by European Union law. The second is to make sure that that is done in a way that does not involve any breach of European Union law and does not put the United Kingdom in breach of its obligations under EU law for as long as the UK remains a member of the EU.
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 that way. Indeed, that appears to be the basis on which the UK Government’s own European Union (Withdrawal) Bill, on which the continuity bill has been modelled, proceeds. If that is right, and if, contrary to the view of the Scottish Government, the continuity bill is incompatible with EU law, the same reasoning would apply equally to the UK Government’s bill.
Presiding Officer, in your assessment of legislative competence, you have put your finger on the central point that arises in relation to the bill—that it contains provisions and empowers ministers to make provisions by regulations that, if they were to come into force before the UK leaves the EU, would be incompatible with EU law. You characterise that as involving an exercise of competence before the competence has been transferred, but the Scottish Government’s view is that the bill is framed to ensure that any provisions that would have that effect can come into force only 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 the continuity 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 that would put the UK 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, the Parliament has competence at this time to deal, in the way that the bill provides, with the consequences for our domestic law of leaving the European Union.
Finally, l appreciate that members have an interest in the legislative competence of the bill, and I look forward to answering, to the extent that I properly can, questions that members across the chamber may have.