The Supreme Court has retired to consider their verdict about the Scottish Parliament’s Brexit Bill, which rejoices in the title of the “UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill”. The Bill does its best to make it look as if it’s all really, really difficult. The issues are said to be complicated. They’re not as complicated as they might seem at first.
The basic principle of devolution is straightforward. All legal authority stems from a common source. In many countries, that source would be the Constitution; in the UK, it’s Parliament (well, technically the “Crown in Parliament”, but it’s the same thing). When Parliament is described as “sovereign”, it doesn’t mean that Parliament holds all the power; it means that all legal authority flows from Parliament. So whenever a lesser body exercises power – which might be, for example, a local authority, a government agency, a private prison or a devolved assembly – its authority has to be traceable back to the source.
What that means, for Scottish legislation, is that all legislation passed by the Scottish parliament has to pass a basic test: does the Scottish Parliament have the delegated authority to make that decision? I raised this issue in relation to the powers of local government when Scotland introduced the Scottish Welfare Fund. In England, local government was granted a power to promote welfare by the UK parliament. In Scotland, the Scottish Parliament passed the same legislation in the same words – but it couldn’t mean the same thing, because the Scottish Parliament couldn’t grant powers it didn’t have. That’s why the Scottish Government needed additional UK legislation before it could set up the Fund.
The same principle applies to any and all legislation passed by the Scottish Parliament. The Scottish Parliament’s authority only extends to those areas where it has devolved authority, or ‘competence’. If it were to pass any rule in general terms – like granting powers to promote welfare, requiring public authorities to offer interpretation in Gaelic or BSL, managing harbour traffic, requiring licences for energy production or whatever – that rule could only be valid in so far as it related to the devolved powers of the Scottish Parliament, and invalid in so far as it related to anything else. The Continuity Bill has been very careful to specify that this is the case, and that it only relates to matters of devolved competence: EU legislation is affected “if and to the extent that it makes provision that is (or would be, if it were contained in an Act of the Scottish Parliament) within the legislative competence of the Scottish Parliament.”
The legal principle at issue is so obvious and so fundamental that I’m ready to take a pop at predicting what the Supreme Court is going to say. They’re going to say that Scotland has the power to make decisions when they have the power to make decisions, and that they don’t have the power to make decisions when they don’t. Politically, this could be seen as a defeat or a victory on both sides, depending on what people were expecting. But it’s not relevant that the UK government might prefer the Bill not to be considered yet; either the law is within the competence of the Scottish Parliament or it’s not.
The basic principle may not be complicated, but the Supreme Court’s judgment almost certainly will be. They’ve established the dreadful practice of allowing each judge to issue a lengthy judgment that is different in tone, emphasis, content and specifics from each of the others, and then they pretend that they’ve reached a joint decision. If you’re not confused yet, you will be.