Okay this can be this afternoon's #ContinuityBill thread. If you aren't interested, you might want to mute it.
Live-stream here: supremecourt.uk/live/court-01.… And we left off talking about clause 17 of the Continuity Bill ('CB)': parliament.scot/UK%20Withdrawa… The Advocate General ('AG') was making the case that clause 17 is outside the competence of the Scot Parl.
Judges are back in: supremecourt.uk/live/court-01.…
Lady Hale asks about what i was wondering - is it a section (rather than a clause) if no Royal Assent yet? Answer is yes, as regards ASPs. So I will do that.
Remembering that the discussion is the UK Govt's fallback position - headline claim is that the CB as a whole is outwith the competence of the Scottish Parliament. Claims about specific sections of the CB are necessarily in the alternative.
AG's second point on s 17 of the CB: it modifies s 28(7) of the SA 1998, which is the provision which confirms the preservation of WM's legislative competence regarding devolved matters.
AG's third point: s 17 CB incompatible with provisions of SA1998 which lets HM by order in Council designate shared powers.
Lord Reed asks whether section 17 relates to a reserved matter - the Crown. But then notices that there's an exception for the prerogative and other executive powers.
The provision of the SA at issue here is section 63: legislation.gov.uk/ukpga/1998/46/… AG claims that section 17 modifies this, which is a provision of a protected enactment.
AG notes that it would be open to WM to override section 17, but that even putting it in a position to have to do so is incompatible with its sovereign status. Lord Sumption sceptical as to the claim that s 17 'reduces' powers of Westminster. AG says it modifies it, not reduces.
AG - CB fails to respect scheme of the Scotland Act 1998. Lord Advocate's ancillary arguments 'don't take him anywhere', says AG. 'This is clearly an incompetent intrusion into the powers of Parliament'.
AG turns from s 17 back to matters discussed earlier - what it means to relate to international relations. Specifically the discussion as to how the CB differs from the EUWA - Francovich, the CFR and general principles.
AG drawing attention to transitional provisions relating to the Francovich rule: paragraph 39(7) here: legislation.gov.uk/ukpga/2018/16/…
AG's point: the Scottish CB takes a 'materially different' approach than does the EUWA. Impact is 'neither here nor there'. WM Parliament has set out a scheme that applies to whole UK and has protected that legislation in the SA 1998.
Again: note that this is an argument about the competence of the SP to enact the CB which applies only once the EUWA exists. So enactment of EUWA seems to have placed CB outside SP's competence where it otherwise wouldn't have been.
Again - we're discussing what it means to modify a protected enactment. Is putting in place a parallel, distinct scheme, a modification if the protected enactment is left formally untouched?
AG is putting forward a broad understanding of modification (which I'm not sure is entirely grounded in the case law). Lord Sumption is prodding away at it - what if you didn't mention the charter but just added analogous rights?
AG says you modify a protected enactment when you legislate on the same subject matter in a materially distinct way. And the CB does that as regards the EUWA, so modifies a protected enactment, so is outside competence.
AG says CB relates to relations with the EU (which is reserved). First evidence: the long title of the CB. Second: s 1(1) of the CB. But not making claim about direct impact - issue is whether it 'relates to' the reserved matter. And, he says, it clearly does.
More than a 'loose or consequential connection' in the words of Lord Walker from Martin v Most.
AG has now finished dealing with some of the queries which were raised this morning from the bench and moving on to third question from reference - section 33 and sch 1 of CB.
AG's claim is that these are outside competence - it is for WM to amend the terms of the devo settlement. SP does not have power to amend its own competence. This is like the delegated legislation argument from Jackson - delegate increasing extent of delegation.
Para 15 of Sch 1 to the CB repeals certain provisions - provisions which, the AG says, are not spent and will be spent only after exit from the EU. Therefore outside competence.
AG notes Christian Institute - just because provision not in force doesn't save it as regards competence to have enacted it.
Lord Reed asks about whether it is saved by s 1(2) of the CB. AG says not and will talk about whether that provision is workable shortly.
AG moves on to fourth question from reference - provisions incompatible with EU law (and the rule of law!). Whole Bill is incompatible with EU law, he says.
Competence is to be assessed at time of passing of Bill, he says. SP has sought to bypass limits on competence put in place by SA1998. Refers to Presiding Officer's statement on the CB - can't exercise competence in anticipation of it being granted.
Analogy to WM legislating in anticipation of withdrawal from EU ignores distinction between the two bodies.
AG now taking aim at s 1(2) of the CB - creates position of 'extraordinary uncertainty'. Impossible to be sure when provisions would begin to have effect.
'The Scottish Parliament is not a soothsayer'. Even you could do it in principle, SP can't know what the scope of its leg comp will be post-Brexit.
AG says you can't circumvent limits on devolved competence by this sort of saving provision - refers to a hypothetical indyref bill, or even an independence bill.
A final point on this from the AG: the constitutional principles of rule of law and legal certainty (unhelpful conflation) are violated by section 1(2) of the CB. Says LA now accepts the application of these principles in cases like this.
This isn't an effective provision; even if it was, it would be in breach of the rule of law. (Maybe, but that isn't what was being thought of in Axa).
And Lord Keen is done. Sir James Eadie has nothing to add. Lord Advocate is on his feet on behalf of the Scottish government.
Straight back to fundamental issues about how to decide whether or not an ASP is within competence and point that it's not for the court to decide whether its better for WM or Holyrood is better placed to legislate. Question of law - not policy.
(Obv true, but I'm not sure the UKSC needs reminding). Court, says LA, is performing an essential constitutional function. Court gives a foundation to the rule of law in deciding these cases.
LA starts with question of competence when CB was passed - then will move on to consider effect of EUWA on that. Will say is has no effect. Questions of 'inter-temporal law' in the words of Lord Roger.
LA accepts that there is some modification, of the EUWA, but will say that neither duplication nor addition are modification of a protected enactment.
LA starting from first principles in his overview of the devo settlement. Claims that allocation of policy responsibility is primarily dealt with by schedule 5. Reminds court that we have two legislatures for Scotland - each can modify the other's enactments.
If WM wants to protect and Act of Parliament, it can add it to Sch 4 - if not, and it relates to devolved matters, Holyrood could repeal it the next day.
Lord Sumption says this means that WM can legislate on devolved matters only with the tolerance of the Scottish Parliament. Reserves judgment on whether this is correct (!).
Lord Reed says there are dicta that ASPs are primary leg (other than the HRA provisions). LA says he'll find it for him. This may address Lord Sumption's point.
Lord Reed is not having Lord Sumption's doubts - points out that ASPs receive royal assent. In the meantime, Lord Kerr has found the dictum of Lord Hope in Axa.
LA says that if you want to reserve a field of activity you put it in schedule 5, but within non-reserved fields specific acts are protected in sch 4.
LA is still at a quite fundamental level. Not really got to the substance of the reference yet - still talking about the law and politics of the devolution settlement, and the role of EU law as a reservation.
(also - there's a very interesting difference in style as between the LA now and the AG this morning).
LA's 'preamble' has come to an end. Says if EU law ceases to apply, it doesn't affect the allocation of responsibilities reflected by sch 5. Simply opens up policy options to the Scot govt that it doesn't currently have.
Lord Hodge notes that both sides agree about the correctness of para 130 of Miller.
Scot govt and Scot Parl, says LA, hav e responsibility to ready the statute book - reminds court that Scot govt wanted a single UK statute to which it felt able to give consent.
Bill was brought forward in a known legal context - (1) UK would leave the EU, (2) in accordance with Art 50, treaties would cease to apply, (3) neither ASP or act of Scot govt could therefore be incompatible with EU law at that point.
To make the obvious point: the LA is focussed on situation when CB was passed, whereas the AG this morning emphasised position after EUWA was enacted.
LA turns to 'int relations' - AG gives overly wide scope to reservation, gets 'relates to' wrong, and mischaracterises the purpose of the CB.
Notes sophisticated treatment of int relations in the Scotland Act - highlights sections 35 and 58 of the 1998 Act which give UK govt powers re ASPs or acts of the Scot Ministers incompatible with int obligations.
LA says the international relations reservations is 'narrow and specific' relating to those aspects which only a state as the subject of international law can undertake.
The Lord Advocate can't remember offhand what CRAG stands for, which tickles me (Constitutional Reform and Governance Act)
Next point - the 'relates to' test. Purpose and effect etc. Notes AG's reference to Lord Walker in Martin v Most, but that this is not the statutory test - can have a more than loose or consequential connection but still not 'relate to' a reserved matter.
Now talking about what is purpose of the bill - LA disagrees with AG's characterisation and says that bill does not relate to international relations. Has effect only in relation to domestic law, on or after exit day.
The Lord Advocate wraps up for the day. Will recommence tomorrow morning at 10.30
