Okay - live stream is back on in the #ContinuityBill case. I will be tweeting the remainder of the LA's submissions this morning and whatever I can manage this afternoon. Feel free to mute thread.
Here's the link: supremecourt.uk/live/court-01.… Sound will come on when judges are about to come in.
Ok, we're back. The Lord Advocate is up, on behalf of the Scottish Govt. Clarifies that he adopts his written case in full. A bit of banter with Lady Hale. Suggests court reads policy memo for CB in full. Turns to addressing some questions from yesterday.
Lord Sumption had asked about something said in the Axa case - the discussion as to whether ASPs can amend Acts of WM. Lord Sumption was sceptical, but the law seems fairly clear here. Two legislatures can legislate on devolved matters, and the Sewel convention is in place.
The SP will be asked to consent, and if it doesn't, says LA, the Bill will (or should) be amendment. The parallel competences are managed by Convention. This is the first WM Act passed without consent (where UKG accepted it was needed).
We're back to quite fundamental issues of the devolution settlement. Interesting that the UKSC wants some of these points clarified. The LA notes Lord Hope's famous comment about 'divided sovereignty' in Jackson.
Back to section 17 of the CB - the 'main flow' of LA's submissions, as he puts it. AG has challenged it on a number of fronts. LA is responding to those points. Says it applies only to subordinate leg - not APs themselves. And only where it contains 'devolved provision'.
Concerned only with such subordinate legislation where made by Minister of UKG. Requirement of consent, says LA, reflects allocation of responsiblities given effect by Scotland Act (and so not, by implication, anything new or dangerous).
SP may amend or repeal an AWP dealing with devolved matters and alter powers of UKG regarding devolved matters. And so it follows that SP may legislate to regulate exercise powers of UKG on devolved matters, such as requirement of consent here.
Now onto question of modification - if it modifies the Scotland Act then it is outside competence of Scot Parl. So LA needs to argue it doesnt do so. Turns to meaing of 'modify' - different approaches in sch 4 and sch 5, LA notes.
Inclusion of enactment in sch 4 does not create a reserved area - if you want to do that you reserve the policy area, or the subject matter of the enactment, as is done in places in the SA1998. LA cites to Lord Hope in Imperial Tobacco.
LA says a provision which adds further provision in the same field of law does not modify the earlier provision. If the protected enactment remains in force it is not modified. Narrow reading of 'modify' - repeal or textual amendment.
LA also accepts that implied repeal or frustration may constitute a modification - doesn't have to be explicit amendment. Dealing with questions from Lord Sumption, who wants him to clarify his claim.
If you add a condition, it seems unlikely the effect remains intact, Lord Reed notes. Bench is interested as to how LA's submissions are compatible with each other.
S 17 doesnt alter at all the power of WM to legislate for Scotland, says the LA. Open to the WM Parl to repeal s 17 if it wants (subject to Sewel). Open also to WM to create new protected enactments #ContinuityBill
Lord Hodge asks about the introduction of new conditions on secondary legislative powers of UKG - why is that not a modification of s 28(7) #ContinuityBill LA notes the limited scope of s 17 again - only applies to devolved matters.
Lord Hodge still pushing on this - if you can add conditions to the secondary legilsative powers have you not stopped WM from legislating? LA says no - WM can repeal s 17 if it wants. Someboyd suggests we're going round in circle #ContinuityBill
Moving now to whether the CB impermissibly modifies s 63 of the SA1998 - power to tranfer functions from UKG to Scot govt, or to have them shared. No limit on the powers in relation to which this can be used - reserved or devolved #ContinuityBill
Section 63 allows for the kind of limit that section 17 of the CB permits - does that mean that s 17 cant also do so? LA says no. Exercise of s 63 entirely unaffected by s 17 #ContinuityBill
Does s 17 relate to the reserved matter of the Parliament of the UK? LA says no, with reference to purpose of s 17 - nothing to do with powers of WM parliament. #ContinuityBill
Next set of submissions on the point about other provisions of the CB which the AG says anticipate withdrawal from EU law. Some are claimed to be outside competence because they are incompatible with EU law #ContinuityBill
LA says we need to pay attention to features of scheme which deal with problem of time - competence of anticipatory legislation needs to be assessed in that context. Cites Lord Reed from RM case back to him (for non-legal followers: same judges have decided lots of the key cases)
LA says it would be incompatible with powers of Scot Parl if it couldn't make use of clever timing to deal with practical issues. Lord Sumption says isn't this really about supremacy of EU law? Does that mean that EUWA is unlawful says LA? Sumption says principles must be same.
LA notes that the UKG is working on the same basis as is the Scot Parl in this case - legislating to anticipate of the withdrawal of UK (and assuming EU law allows you to) #ContinuityBill 'Not hypothetical... that EU constraints will cease to have any bite'
LA says test for s 29(2)(c) is - does a provision of an ASP put the UK in breach of the EU treaties? EU law recognises the distinction between a provision being enacted and being in force - has given the UKSC a bunch of cases which prove that #ContinuityBill
Looking now at specific provisions challenged by AG. LA notes that these only take effect after exit day and so can't be incompatible with EU law. Talking about definition of 'exit day' in CB (this all might be complicated by yesterday's white paper). #ContinuityBill
Talking about clause 11 of the CB - it is different because it is intended to be used before exit day. But the act provides it can't be used if it would be incompatible with EU law - the same approach as is taken by the EUWA #ContinuityBill LA using the UKG's logic against it.
If EU law lets you withdraw from the EU, says LA, it can't be contrary to EU law to legislate in anticipation of that. LEgal certainty is - after all - a principle of EU law. And the s 11 power is therefore capable of being exercised compatibly #ContinuityBill
Notes again the saving provision in s 1(2) of the CB that was discussed yesterday. LA points out that logically it wasn't needed - SP has no power to legislate contrary to EU law - but puts matter beyond doubt #ContinuityBill
And, moreover, CB is not incompatible with s2(2) of the ECA. Discussed the Miller dicta regarding the emptying out of that provision after exit-day - there will be no EU law rights to take effect after Brexit (subject to transition, WA etc).
Back to s 33 and s ch 1 of the Bill, and the provision about spent legislation. LA says provisions of SA are becoming spent no matter what, so question is only whether SP can deal with that. Notes they don't come into force on royal assent #ContinuityBill
Background to this discussion is sch 4, para 7 of the Scotland Act which says that sch 4 doesn't prevent you repealing 'spent enactments'. Says this permits anticipatory repeal - wont be brought into force until provisions are spent.
Lord Reed notes that not everyone is as confident as the LA that we will leave next March. Lord Sumption says that'something might come along' that means we dont actually leave the EU at all - provisions will never come into force.
Now discussion of 'relates to' - can be asked, says LA, without any temporal contingency. Whether or not commenced is often irrelevant. #ContinuityBill But there are cases where anticipatory provision is at issue where temporal point is key and should be considered.
Common law review of ASPs (AXA case) now - one for the aficionados. LA queries whether CL review is within scope of reference procedure but leaves it up to court - is it same as statutory limits? Lord Reed notes that AXA is about supervisory juris which isn't at issue here.
LA emphasising limited nature of common law limits on SP which should be recognised - it is for extraordinary cases (this, he means, is not one). #ContinuityBill Should be reserved - as with WM - for Jackson style issues as raised by Lords Steyn and Hope.
(I'm not sure this is a good case to be discussing CL limits on ASPs - interesting tactical decision by the AG to raise the point)
LA says he's dealt with all the AG's points from original case. Turns to the AG's starting point - impact of EUWA on competence of CB. LA says EUWA doesn't affect the competence point. (this will be key) #ContinuityBill
The parties have both changed their position as to when competence should be assessed - AG originally said (it seems) that point to be considered at time of passage of Bill.
LA says he didn't orignially anticipate the signficance of s 30(5) and (6) - which were orignally introduced by the SA 2012. Back and forth with Lord Reed about the Bill/Act point - LA suggests that ref is about 'if the bill were an act' #ContinuityBill
The relation between sections 30 and 33 is being addressed. Lord Reed seems to say that LA is trying to have his cake and eat it - s 30 only applies to acts but ref is about bills. LA offers an attempt to reconcile the position #ContinuityBill
Lord Carnwath invokes common sense, which is always dangerous.
Is the whole bill outside competence because it modifies the EUWA? LA says that claim is 'methodologically unsound' - notes that s 29 SA refers to 'any provision', so cant assess it at level of whole act. Though EUWA is protected enactment, its subject matter is not reserved.
(this is why the LA has been emphasising the schedule 4/5 distinction - wants to emphasise that the WM parliament could have reserved subject matter of the EUWA but didnt) #ContinuityBill
Now a discussion about what a 'privision' is - do we reaaaally have to go thorugh the CB line by line? Can we look at whole parts? Chapters? Some are sceptical about the LA's claim, I would say - think you can assess the whole act as one #ContinuityBill
Now talking about the 'keep pace' powers in the EUWA and CB. And about the small number of ways in which the there are material differences between the two.
Again - discussion of whether duplication is modification? LA says no. But what if you add qualifications says Lord Carnwath? Also discussion of practicalities - if there are parts of the CB outside competence, how should it be dealt with? LA reminds court of what SA says on this
UKSC will struggle, Lord Reed notes, to give the Scot Parl guidance on each individual provision. So potentially the Scot Parl will have to work out implications of a high level judgment for the Bill (and risk ending up back before UKSC).
Lord Sumption notes that to answer the reference, they have no choice but to address competence of certain specific provisions in bill #ContinuityBill Lord Reed notes that reference doesn't mention EUWA - if court doesn't deal with it, Bill could end up back in UKSC later one.
(this question of practicality will be very important when the UKSC comes to determine at what point in time the competence of the CB should be assessed - won't want to go through this again).
LA has got the standing orders of the Scot Parl out - the Scot Parl will be limited in the amendments it can make if the reference goes against it to what the UKSC has said is problematic #ContinuityBill
So there is now a discussion of the specific points on which the two instruments differ: Francovich, CFR, and general principles. This is where the LA acknolwedges that the CB modifies the EUWA. Lord Sumption asks whether the incorporation of the CFR is 'ambulatory'
Most important point of contention, says LA, relates to 'fixing power' (to make good deficiences in law relating to EU withdrawal). LA says grant of parallel power in different terms doesnt necessarily modify original power. CB power more limited.
Discussion now is quite finely grained - about the ways in which the two fixing powers differ.
LA says that the CB power is narrower, and subject to more limitations. But Lord Reed notes that AG has pointed out a way a way in which it may be less limited. LA says that the limitation is imposed indirectly and so point is illusory.
LA gets to the key point - because the CB power is narrower (subject not only to the same limitations, but extra ones) then the two powers can coexist. Therefore no modification, therefore not outside copmetence.
LA finishes up on that point - now the Welsh government is up.
I'm afraid I'm struggling to follow the submissions on behalf of the Welsh government so far. I think I missed an important point early on.
The key point so far is about whether attempts to prepare the statute book relate to international relations. WG says they don't. Cites the 'loose or consequential connection' dictum - if that's all there is, then doesn't relate to.
Lord Sumption asks if he's saying that legislation giving effect to an international agreement doesn't relate to internaitonal relations - the Welsh Government (Michael Fordham WC, I think) says that's correct.
Lord Sumption suggests this is an very narrow understanding of relating to international relations. Asks what sort of ASPs *would* relate to international relations on this view? No examples forthcoming in response. #ContinuityBill
MFQC moves to the rule of law point. Pretty sceptical - the AG is making a rule of law claim which he (the AG) thinks wouldn't apply to the WM Parliament. We are far from the logic of Jackson/AXA here.
MF using the example of Welsh tax legislation to demonstrate that there are no problems with legislating in anticipation of future events. #ContinuityBill
We're back to talking about the Human Rights Act - MF notes that there's nothing stopping duplication of rights by the devolved parliaments. Notes example of HR provisions in extradition legislation. HRA also permits additional or more generous rights.
This obviously goes to the question of what it means to modify a protected enactment. MF's point is that this is a narrow concept and that adding to or duplicating a protected enactment (eg the HRA) doesn't modify it #ContinuityBill
What about the introduction of mandatory preconditions? (ie, seciton 13 of the CB). MF says this doesn't per se constitute a modification (and also that we shouldn't consider the issue in the abstract but look at specific provisions).
Lord Sumption queries the usefulness of the analogy used by MF. Wants a better one. #ContinuityBill
MF talks about the jurisdiction point - on a section 30 order, can the UKSC consider constitutional values of the sort that might arise in exercise of its supervisory jurisdiction? This is the Jackson/AXA point. So even if CB is contrary to such values, UKSC can't act on them.
(This is a fairly technical point, but may end up telling us something interesting about the status of ASPs and the nature of the reference jurisdiction under the devo statutes).
Michael Fordham wraps up his orial cubmissions - he can give an example after lunch if he finds one. But that's us for the morning.
