AG Ref: The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018]

Facts: Scottish Continuity Bill to allow some EU law to be retained in Scottish law. Brexit Power will land on devolved nation if it’s within their devolved scope, but the Westminster ministers could then enact legislation to put those on hold and regulate instead. s17, Scottish ministers has a veto power over the UK ministers’ delegated legislation (EUWA 2018 s8, s12: Henry VIII power).

Held: SC rejected UK Govt claim; the ability to regulate the retention of EU law in Scotland was within the power conferred to Scottish Parliament. SOME of the provisions WERE beyond scope - sec 17 which says that UK Minister needed to obtain the consent of Scottish Ministers before delegating a legislation.

How this case demonstrates the relationship between Scotland and the UK post Brexit?

Key Question : Was it ultra vires for Scottish Parliament to enact the Continuity Bill (before the Withdrawal Act 2018)?

No:

This case recognises Scottish Parliament’s broad law-making power. Recognised that Westminster was passing legislation with regards to EU law for the entire UK, and surely Scotland retains the power to legislate. The enactment of Scottish continuity bill was within the competence of the Scottish Parliament

Yes:

SOME provisions were beyond the scope – s.17

s.17 had the effect of modifying Scotland Act as it modified the Westminster’s ability to make law for Scotland

Provisions that had the effect of modifying EUWA 2018 were ultra vires, E.g. preservation of EU Charter of Fundamental Rights

UK's argument

International relations matters are beyond the legal power of Scottish Parliament

Court ratio:

The Bill merely regulate the domestic legal implication after the UK's international decision to leave the EU.

Question to LEVEL UP : Is Court endorsing a muscular unionism (emphasizing the supremacy of Westminster over Scottish Parliament)?