Supreme Court justices in London are being asked to rule on whether the EU exit bill passed by the Scottish Parliament in March is constitutional and “properly within devolved legislative powers”.
The move seeking “legal certainty” over the legislation was taken “in the public interest” by the Attorney General and the Advocate General for Scotland, the Government’s senior law officers.
A panel of seven justices, including the court’s president Lady Hale and deputy president Lord Reed, will hear argument over two days, beginning on Tuesday.
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.”
Advocate General for Scotland Lord Keen said: “By referring the Scottish Parliament’s Continuity Bill to the Supreme Court we are seeking legal certainty as to its competence.”
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.
Michael Russell, minister for UK negotiations on Scotland’s place in Europe, said: “The Continuity Bill was passed by 95 votes to 32 in the Scottish Parliament, that is an overwhelming majority. Scottish ministers are satisfied that the Bill is within legislative competence.”
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 Supreme Court, Lord Advocate James Wolffe QC argues that the court 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”.
Scottish Secretary David Mundell said in a statement: “Given the view of the Scottish Parliament’s Presiding Officer that the Continuity Bill was not within the legal scope of the Parliament, we believe it is important to ask the Supreme Court to provide absolute clarity.
“The legislation which set up the Scottish Parliament anticipated such a situation, and we are simply following the legal process set out in the 1998 Scotland Act.”