The UK supreme court has ruled that a key part of the Scottish government’s emergency Brexit legislation breaches the law because ministers in Edinburgh cannot veto legislation introduced by the UK government.
UK ministers said the ruling vindicated their decision to challenge legislation introduced by the Scottish parliament earlier this year in a constitutional confrontation over the repatriation of EU powers into domestic law.
Nicola Sturgeon, Scotland’s first minister, and Carwyn Jones, then first minister of Wales, accused Theresa May’s government of a “power grab” because the UK government wanted to retain the final say over scores of pieces of legislation.
After both the Scottish and Welsh legislatures introduced so-called “continuity bills” in February which allowed them to take control of key bits of EU regulation, Welsh ministers suspended their legislation because they accepted a compromise deal over those powers brokered with the UK government.
Sturgeon refused to sign off on the compromise deal, and in a long and complex judgment, the court said that one key section of Holyrood’s act section 17, which seeks to amend Westminster’s Scotland Act, was ultra vires because Scottish ministers cannot change power reserved to Westminster.
The supreme court said: “Under schedule 4 to the Scotland Act, the Scottish parliament does not have legislative competence to modify the Scotland Act. An enactment is modified by a later enactment if it is implicitly amended, disapplied or repealed in whole or in part.
“The UK parliament has the power to authorise ministers to make subordinate legislation, but the effect of section 17 would be to make the legal effect of such subordinate legislation conditional upon the consent of the Scottish ministers.”
However, the supreme court supported Holyrood’s rights to prepare its own legislation from Brexit in areas within its legislative competence. It also had the right to prepare new powers to take control of former EU regulations once those regulations were no longer in force because the UK had left the EU.
Mike Russell, the Scottish constitutional affairs secretary, said: “The Scottish government’s position has been vindicated by the supreme court judgment, which confirms that the Scottish parliament had the competence to prepare its own laws for Brexit when the continuity bill was passed.”
He accused the UK government of “constitutional vandalism” for retrospectively introducing powers in the Lords which, he said, limited the rights of MSPs to legislate on Brexit.
“Worryingly, parts of the bill have been thwarted as a result of steps taken by the UK government. For the first time ever, UK law officers delayed an act of the Scottish parliament from becoming law by referring it to the supreme court.”
It remains unclear what the impact of today’s judgement will have as it is still far from clear whether Brexit will go ahead as the UK government intends. Even so, the Scottish parliament is now running very short of time to amend scores of pieces of legislation before article 50 takes effect on 29 March 2019.
David Mundell, the Scottish secretary, said: “The supreme court has provided much-needed legal clarity that the continuity bill goes beyond the powers of the Scottish parliament.
“This demonstrates clearly that it was the right thing for the UK government to refer the bill to the court. It is now for the Scottish government to consider how to proceed, and we hope Holyrood will take a pragmatic approach and work constructively with us as we leave the EU.”