Hottest ticket in town. 
The running order: UK Government up first. Scotland responds. Then Wales and Northern Ireland make brief interventions. All over at 4pm tomorrow.
And here is the case under consideration
Kick off in 5 minutes. The rival teams are on the pitch. We await the 7 referees (2 Scots, 1 Welsh, 1 NI, 3 English).
The Scottish Bill being challenged is designed to do the following (according to a useful @ScotParl paper)
It differs from the UK EU Withdrawal Act in the following ways
The Advocate General, Lord Keen, argues that the entirety of the Scottish bill implicitly amends the UK Withdrawal Act and is therefore outside of competence.
Lord Keen: The Withdrawal Act provides that Scottish ministers may not amend EU Retained law in areas to be specified in regulations under Section 12 [agriculture, fisheries, state aid etc - we expect], except to the extent they could have done so prior to Brexit.
Lord Keen: The Scottish bill (s33) repeals all references (in the original Scotland Act of 1998) to the European Communities Act, but such repeal is also made by the new UK Withdrawal Act. The Scottish Bill is fundamentally inconsistent with the purpose of the UK Act.
Lord Keen: the Scotland bill would create a subset of EU retained law, at odds with the intention of having a single legal framework for retaining EU law. This duplication would create inconsistency and conflict.
Lord Keen: By 'protecting' the Withdrawal Act from modification by the Scottish Parliament, the 'Sovereign Parliament' has made clear its intent to create a single consistent UK-wide regime for retaining EU law.
Lord Keen: "The Scottish Bill fundamentally undermines the core purpose of the UK Act".
The hearing is being streamed at supremecourt.uk/live/court-01.… by the way. (I'll do my best to continue to commentate but I'm an amateur when it comes to the law).
Lord Keen: "It is perfectly clear...that the Scotland Bill does have the consequence of modifying the UK Act."
Lord Keen: Further, the Scottish Government and Parliament were "aware all along" of what was the intention of Westminster [and therefore introduced their own bill knowing it would be inconsistent with the UK Act].
The UK case so far rests on the point that the Withdrawal Act is already law. It is this that renders the Scottish Bill beyond competence. This sidesteps the question of whether the Scottish Bill was within competence as of March 2018 (when it was challenged by the UK Gov).
Lord Keen gives examples of where Scottish Bill and UK Act diverge: Charter of Fundamental Rights, Francovitch damages, general principles of EU law.
Lord Keen summarises:
1. UK Withdrawal Act is 'protected'.
2. Scottish Bill would amend UK Act.
3. Therefore Scot Bill is beyond competence.
1. UK Withdrawal Act is 'protected'.
2. Scottish Bill would amend UK Act.
3. Therefore Scot Bill is beyond competence.
First mention of Sewel - 'the legislative consent convention'. Lord Keen calls the @scotgov interpretation of this 'an extraordinary proposition'. Here's one we @instituteforgov prepared earlier on Sewel instituteforgovernment.org.uk/explainers/bre…
Specifically Lord Keen rejects the @scotgov claim that Sewel creates binding obligations on Westminster, for instance to amend legislation where necessary if consent from Scotland is not given.
Lord Keen describes the Government's guidance with regard to seeking consent for legislation that amends devolved competence as merely 'practice, not a convention'. That is a big move.
In other words, [I think], the Government is seeking to define Sewel back down to the narrow formulation that consent should be sought only for legislation *in devolved areas* but not for legislation that defines the scope of what those devolved areas are.
Lord Keen: the Scottish Bill clearly 'relates to' the reserved matter of relations with the EU. This ('relates to') is the legal test of whether a bill is within or outwith devolved competence.
Livetweeting from actual qualified lawyers also available from other suppliers
If someone could nudge the @UKSupremeCourt sound man, I can't hear the questions being asked by the judges
Lord Keen: the purpose of the Schedule 5 reservations (in the Scotland Act 1998) is to protect areas of law in which the UK as a whole has an interest.
Lord Keen: Matters of UK interest must remain the responsibility of the UK Parliament. Interpretation of Schedule 5 (SA98) should be informed by this point.
Lord Reed (I think) draws a distinction between a law that *has implications for* international relations and one that directly *relates to* international relations.
Lord Keen: The Bill under discussion is about withdrawal from the EU [so clearly relates to UK-EU relations]. It is not about some minor change to EU law and how it will apply across the UK.
Lord Keen reads from previous Supreme Court judgment (by Lord Hope): “matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster.” Argues that this must apply here and that the UK single market must be preserved
Lord Keen: the Scotland Act 1998 reserved relations with the EU, with the exception of 'observing and implementing' EU law. The Scottish Bill does not fall within the scope of this exception.
Lord Keen: Parliament cannot be assumed to have devolved to Scotland a competence that in 1998 it no longer controlled, since these areas had already been transferred to Brussels.
Lord Keen now turns to the claim that part of the Scottish Bill (s17) is outside of competence because it modifies the powers of the UK Parliament and amends the Scotland Act 1998, which the Scottish Parliament may not do.
Now back after lunch. Lord Keen is still on.
Lord Keen is arguing that the Scottish Bill restricts the powers of the 'sovereign parliament' at Westminster, by requiring Scottish consent for the use of certain delegated powers. S17 of the Scottish Bill:
Lord Keen: the Scottish Bill takes "a materially different approach" to the UK Act with regard to Francovitch damages and the Charter of Fundamental Rights.
Under questioning, Lord Keen argues that if the Scottish Parliament simply legislated to create new rights for people in Scotland (without any reference to the EU framework), that this would be outwith competence, as it would modify the HRA. Seems debatable.
Lord Keen moves on to clause 33 of the Scottish Bill. That repeals 'spent references' to EU law in the Scotland Act 1998. He argues that these provisions are not spent [since we are still in the EU]. This is therefore a matter of the Scottish Parliament amending its own powers.
Lord Keen: The fact that these provisions will not come into effect until after Brexit does not save them from the test as to whether they are now within devolved competence.
Lord Keen: Westminster is sovereign. Holyrood is not. The latter therefore cannot legislate with regard to powers that it does not currently hold [since Brexit has yet to occur]. Westminster can do what it likes. I lightly paraphrase.
Lord Keen: The Scottish Parliament or Welsh Assembly cannot legislate by hypothesis. That is, it cannot confer powers upon itself for a situation that has yet to arise.
The Lord Advocate James Wolffe now begins his response on behalf of @scotgov There are a lot of different lines of attack on the bill that he will have to repel.
Lord Advocate: I will first address the question of whether the Scottish Bill was within competence when passed. And then consider the effect on the Scottish Bill of the UK Withdrawal Act, passed subsequently.
Lord Advocate: The constitutional position is that the Scottish Parliament can amend laws passed by Westminster if they are non-reserved areas. Lord Sumption appears sceptical. [FWIW, this is my understanding too.]
Lord Advocate: The Scottish Parliament must, in exercising its legislative competence, respect the other constraints on its competence. It cannot *modify* those Acts listed in Schedule 4 [as the EU Withdrawal Act now is] but it can still legislate in the same area.
Lord Advocate: The general scope of devolved competence, as set out in Schedule 5, is not affected by EU law. Whether the EU legislates in a particular area simply affects the range of policy choices Scotland can make within its area of devolved competence.
Lord Advocate: I accept that Westminster can, subject to conventions, legislate to impose new constraints on devolved competence. However, the Scottish Bill is not outwith competence as currently set out in law.
Lord Advocate: The UK Government case rests on an unjustifiably broad definition of 'international relations', and of 'relates to', and it misstates the purpose of the Scottish Bill.
Lord Advocate: The purpose of the Scottish Bill is to provide for continuity in domestic law, in light of the consequential effects of Brexit. But it does not, in terms of its purpose and effect, itself relate to the reserved matter of international relations.
Lord Advocate: The Scotland Act 98 already provides for many protections to the UK internal market.
The Court will now adjourn till the morning. We all bow. And I need a drink.
