By Cathy Gordon, Press Association
Brexit legislation passed by the Scottish devolved administration “cannot stand”, the UK’s highest court has heard.
The submission was made at the start of a challenge at the Supreme Court in London over the “competence” of the Scottish Bill.
The EU exit legislation has been referred to the court by the Attorney General and the Advocate General for Scotland, the Government’s senior law officers.
Advocate General for Scotland Lord Keen told seven justices at the start of the two-day proceedings on Tuesday that their case was that “the Scottish Bill as a whole cannot stand”.
He told the panel, including Supreme Court president Lady Hale and deputy president Lord Reed, that the Bill “impermissibly modifies” the UK Act on withdrawal from the EU.
The UK Bill was given Royal Assent on June 26 and became the European Union (Withdrawal) Act 2018.
The law officers say in their written case before the justices that the Scottish Bill was passed “without knowledge” of the outcome of negotiations between the UK Government and the EU institutions and “pre-empts them”.
They state: “The effect of what the Scottish Bill does is to make provision for the future relationship with the EU and EU law when that relationship is under negotiation.”
They submit that this “could serve to undermine the credibility of the UK’s negotiation and implementation strategy in the eyes of the EU”.
The move seeking “legal certainty” from the Supreme Court on the legislation, which was passed in March, was taken “in the public interest” by the law officers.
The Supreme Court is being asked to rule on whether the EU exit Bill passed by the Scottish Parliament is constitutional and “properly within devolved legislative powers”.
The issue the judges are being asked to decide is “whether the UK Withdrawal from the European Union (Legal Continuity) (Scotland Bill) is within the competence of the Scottish Parliament”.
When details of the case were announced in April, the then attorney general Jeremy Wright said: “This legislation risks creating serious legal uncertainty for individuals and businesses as we leave the EU.
“This reference is a protective measure which we are taking in the public interest.”
The Scottish Parliament’s Presiding Officer has previously ruled the Scottish EU Continuity Bill is outside Holyrood’s competence – although SNP ministers say they are confident it is not.
As well as hearing the case put forward by the law officers, the justices will also hear submissions in response from the Lord Advocate.
In written submissions to the court, Lord Advocate James Wolffe QC argues that the justices should rule “in the negative” on the question posed by the law officers relating to whether the Bill “as a whole” is outside the legislative competence of the Scottish Parliament.
He points out that although the reference to the court “arises in a politically contentious context, the issues which arise for the court’s determination are strictly issues of law”.
Mr Wolffe states: “The purpose and effect of the Scottish Bill is to promote legal certainty by making provision for the continuity within the domestic legal system of existing EU-derived law upon and following withdrawal.
“Regardless of any treaty on the future relationship which may be entered into between the UK and the EU, there is a need to provide for legal certainty and continuity when the UK leaves the EU in March 2019, and that is the purpose and effect of the Scottish Bill.”
Submissions will also be made by the Attorney General for Northern Ireland and the Counsel General for Wales as “interested parties”.
A similar reference to the Supreme Court was made in relation to the Welsh Bill, but that was withdrawn following an agreement reached with the Welsh Government concerning the terms of the UK Bill.