Good afternoon everyone and thank you very much for coming along to this lecture. For those of you who don't know me I'm Shona Wilson-Stark, one of the lecturers in public law here in the Faculty. So it's a pleasure to welcome you to this event which is hosted by the Centre for Public Law and designed to discuss the constitutional implications of the continuity bill case. So for constitutional lawyers in the audience you might remember we mentioned this case in lecture 20 towards the end of Mickleman's term but we were waiting to find out what might happen and now we know what's happened and we need to bring you up to date with the outcome of the case and that might be the same for students and other subjects perhaps any EU lawyers and others who want to be updated on what happened. So this event is primarily aimed at students in the audience and it's very important that you start to think about any questions you might want to ask at the end of the presentations. So you're very lucky today to hear from three members of the faculty who will all give you their digest of important aspects of the case. So I'm just going to introduce them now and then we'll hear from them in turn. Each of them will speak for 10 to 15 minutes and then we'll have plenty of time to hear from you. So first of all we will hear from Professor Mark Elliott who is a Professor of Public Law in the Faculty, also Deputy Chair of the Faculty Board and a Fellow of St Catherine's College. After that we'll hear from Professor Allison Young who is the Sir David Williams Professor of Public Law and who is a Fellow of Robinson College and then last but by no means least Dr Paul Daly who is a Senior Lecturer in Public Law and a Fellow of Queens College. So without any further ado we'll start with Professor Elliott. Okay well thank you Shona and thanks to you all for coming along today. What I'm going to do is to speak for about quarter of an hour and try to give you an overview of the case itself in terms of the legal and political background that led up to it and then what the Supreme Court actually decided and then my colleagues will focus on more specific aspects and implications of the judgment. So let's start with some background. Why did this case end up in the Supreme Court and what was the case about? I'll suggest at the end that the genesis of the case probably goes back to Miller and the whole of that sort of episode but the immediate background of the case is the European Union withdrawal act 2018 or the withdrawal bill as it was when this all sort of kicked off. As you will know from Constitutional Law or other lectures the main thing that the withdrawal act does is to attempt to provide for a degree of legal continuity as the UK leaves the EU and so it captures the vast majority of EU law which is in force at 1 minutes to I guess it's 11 p.m on exit day and we then convert that into domestic law. Alongside that it confers very extensive powers on ministers to address so-called deficiencies in the Statute Book arising from withdrawal from the European Union. Now when this legislation was introduced into the UK Parliament the devolved administrations in Cardiff and Edinburgh took exception to certain aspects of it and they had a number of objections to it. They said that in general the bill fundamentally cut across the principles of the devolution settlements. Why? Well in part because they said that the UK powers being vested in ministers could be used to make provision in policy areas which were the responsibility of Scottish or Welsh ministers and alongside that the limitations in the devolution statutes that stop devolved action in breach of EU law would it be turned into restrictions on not going against retained EU law which the devolved government saw as a new limitation on devolved authority. In the light of all of that the Holyrood Parliament in Scotland refused to give legislative consent to the withdrawal act and yet nevertheless it was passed by the UK Parliament and it was the first time that this had occurred where there'd been a clear refusal in Scotland to grant consent and yet the UK Parliament went ahead anyway and enacted the bill and in Wales there was a ultimately an accommodation and the Welsh government in the end recommended consent so Wales in the end did consent but Scotland didn't. So with the UK Parliament pressing ahead with plans that Scotland found unacceptable the Scottish Parliament retaliated and it introduced its own legislation which we'll just call the continuity bill because the full title is a bit of a mouthful. Now in some aspects the continuity bill does very similar things to the withdrawal act it aims to ensure as surprise surprise given the type of the bill legal continuity on Brexit so whereas the withdrawal action sections two to four preserve EU law the continuity bill provides for the continued operation in Scotland of what it calls devolved EU law in other words EU law which impinges on devolved at matters. So so far the two pieces of legislation are doing very similar things however there were also very significant differences between them and here are some of the the key differences. The withdrawal act the UK act said that the EU charter of fundamental right would not come across into domestic law when Britain left the EU but the Scottish continuity bill said that the charter would remain part of Scott's law in so far as it obtained to devolve matters so a clear difference in terms of the retention of the charter. Similarly whereas the UK legislation said there'd be no right of action in domestic law arising from general principles of EU law after Brexit the Scottish continuity bill said more or less the opposite. Next whereas the UK act said that there'd be no possibility of a claim based on Frankovic damages after exit the Scottish continuity bill said that there would be that possibility if the right of action had accrued prior to exit. The final difference for now but there is also a further collision point that I'll come to later is that whereas section eight of the withdrawal act authorizes UK ministers to deal with deficiencies in the statute of arising from withdrawal section 11 of the continuity bill provided Scottish ministers with a similar power but it was framed differently in some respects it was broader and in some respects it was narrower it wasn't aligned with the power given to UK ministers under section eight of the withdrawal act itself. So we have the two parliaments on collision course in the sense that the UK is pressing ahead in spite of the absence of devolved consent and then the Scottish parliament retaliate by means of this continuity bill. Another first at this case constitutes is it's the first time that a case has ended up in the UK Supreme Court about the legislative powers of the Scottish parliament thanks to a referral by the UK law officers. Section 33 of the Scotland Act allows the UK government to ask the Supreme Court to rule prior to royal assent on whether or not a Scottish bill is within the competence of the Scottish parliament and it was the first time this had happened. Let's remind ourselves of what the Scotland Act says about the powers of the Scottish parliament. Section 28 says that an act of the Scottish parliament is not law if it's outside competence and section 28 subsection 2 then lists various grounds on which something would be outside of competence. I've just highlighted the salient ones here. So first something is outside competence if it relates to reserved matters and here it's important to note that international relations is a matter that is reserved to the UK. Second something is outside Holyrood's competence if it breaches restrictions in Schedule 4 of the Act. One of the things at Schedule 4 lists is what are called protected enactments. In other words they're protected against modification by the Scottish parliament and among those protected enactments are much of the Scotland Act itself and following its enactments the EU withdrawal act 2018 and that's a particularly important point as we'll see in a moment. Thirdly some things outside competence if it is incompatible with EU law or after exit day if it's incompatible with retained EU law. Finally but this doesn't appear in section 28 we know from the judgment of the Supreme Court in AXA that if a Scottish act of parliament's conflict with fundamental constitutional principles then it may be ruled to be outside competence or unlawful on that grip. So that's the legal backdrop against which the UK government brings this matter to the UK Supreme Court and asks it to rule on whether or not the Scottish parliament has stayed within the boundaries of its powers. So how did the UK government try to argue that the Scottish parliament had exceeded its competence? I'm going to highlight four grounds of challenge that were brought. Two of them were unsuccessful and two of them were successful. So one of the broader arguments the UK made was that the whole of the Scottish bill was outside competence because it was all concerned with international relations relations between the UK and the EU. But the court disagreed the court said that in fact all the bill is doing is regulating the legal consequences in Scotland of the cessation of EU law as a source of domestic law regarding devolved matters and in that sense they didn't feel that it engaged the international relations restriction on Hollywood's powers. So that argument by the UK didn't succeed that would have taken the whole act out but it didn't work. The UK government also argued that there were certain aspects of the bill at least which engaged the legal certainty or rule of law grounds of challenge which were made possible by the AXA case. So these are the extra statutory grounds of challenge that don't appear in section 28 of the Scotland Act itself. However the reasons best known to the court it said that the AXA grounds of challenge these broader constitutional grounds of challenge are inapplicable in cases brought under section 33. In other words these cases that are referred to the court for an opinion prior to royal assent the AXA grounds said the court were only applicable to challenges brought after royal assent after full enactments. There were also some very curious comments there because those of you who are administrative lawyers might want to raise at the end in questions about the difference in the legal status between an act that was found to be to fall foul of the AXA grounds as compared to the section 28 ground but we'll leave that issue for now. So those two grounds of challenge didn't succeed but a third ground of challenge did and that was to do with the sovereignty of the Westminster Parliament and the way in which section 17 of the continuity bill arguably impinged on the sovereignty of the UK Parliament. I'll come back to that point in a minute because that's sort of a standalone point. Just to complete the picture the fourth and in a sense the most successful ground of challenge was on the ground that the continuity bill or provisions in it were incompatible with the EU withdrawal act. Now the Scottish government argued that the court shouldn't even be looking at this act because it wasn't on the statute book when the continuity bill was enacted but the court said no we have to look at the legal position as it is today when the case is actually in front of the court and at this point in time the withdrawal act is part of the legal picture. The court didn't accept the argument that the whole of the continuity bill was inconsistent with or fell foul of the withdrawal act but it did hold that multiple provisions within the bill were outside of legislative competence because they were inconsistent with the withdrawal act and it didn't matter that the continuity bill wasn't trying to explicitly go against the withdrawal act it was sufficient said the court if it implicitly amended, disapplied or repealed the withdrawal act either in whole or in part. Now if we go back to my earlier slide where I listed the differences between the two pieces of legislation we can see that the vast majority of the interest in provisions are now taken out so the court holds that the continuity bill is invalid in terms of retaining the charter, in terms of retaining the general principles, in terms of the opportunity for Frankovich claims and in terms of the differential powers given to Scottish ministers so on all of those grounds the court holds that the bill is outside of Holyrood's competence. That takes me to the section 17 challenge or the challenge to section 17 of the bill so let me just explain the background to this. As you know section eight of the withdrawal act gives UK ministers a very broad power to correct the statute book in the light of deficiencies arising from exit. That power is vested in UK ministers and importantly in giving them the power to make secondary legislation amending the law there is no requirement of devolved consent even if the exercise of that power impinges on areas that engage devolved competence and this is what the devolved government said was a power grab in the legislation. The Scottish Parliament retaliation with section 17 of the continuity bill it said that the section eight power in the so far as it impinged on devolved matters could only be exercised in effect if the Scottish ministers had consented to it so whereas the UK legislation gave UK ministers an unconstrained power in this regard section 17 sought to insert in effect a Scottish veto over UK secondary legislation made under section eight and the question was whether or not this was outside the Scottish Parliament's competence. Now section 28-7 of the Scotland Act says that section 28 of the act which vests power in the Scottish Parliament doesn't affect the power of the UK Parliament to make laws for Scotland and the question or at least the way the question was considered was whether or not section 17 of the continuity bill was inconsistent with section 28-7 in a sense the Parliamentary sovereignty affirming provision in the Scotland Act 1998 and the court said it was inconsistent and it was therefore outside of competence. Why? Because section 17 it said would make the Westminster Parliament incapable of granting a power to UK ministers along the lines of the section eight power which was free from a requirement to obtain Scottish ministers consent. This said the court would amount to a modification in section 28 sub section 7 of the Scotland Act 1998 and on that basis it was held to be outside of competence. Now Professor Young is going to say some more about this whole question I think but just before I finish two broader points what's standing back from the technicalities of this case what can we learn from it? Firstly what does it tell us about Parliamentary sovereignty and devolution? The Supreme Court is unsparing in its reaffirmation of the sovereignty of the UK Parliament it says in terms the UK Parliament remains sovereign it says that its power in relation to Scotland is undiminished by devolution and it says that the very essence of a devolved system is that it preserves the powers of the central legislature in relation to all matters whether devolved or reserved. So in that sense the judgment is uncompromising. That then raises questions about where does the Sewell Convention fit in and where does section 288 of the Scotland Act fit in which provides a kind of statutory affirmation or recognition of the Sewell Convention. Well of course we know from the Miller case that the Supreme Court doesn't really think much in legal terms of the Sewell Convention it was very dismissive in Miller of the Sewell Convention and the continuity Bill case doesn't provide any different kind of view. Again by stating the sovereignty of Parliament in these uncompromising terms it leaves little in any room for arguing that the Convention is anything more but a political factor which can be taken into account or not as the UK Parliament prefers. I wonder if what we're seeing then is although the Court in Miller refused to rule on the Convention I wonder if we're seeing a phenomenon whereby that very refusal has served to some extent to undermine the Convention and to deprive it of the political resonance that it was invested with only a few years ago and more generally I wonder if that's contributing to a very significant breakdown in constitutional relations in different parts of the UK. So my very final point is just to read you an extract from the legislative consent memorandum that the Scottish Government prepared on the Agriculture Bill which is currently going through the Westminster Parliament it doesn't sound like very fertile constitutional territory however what the Scottish Government says is first of all we don't think that the Agriculture Bill is purely on reserve matters we think it does engage devolved matters and we don't think the Scottish Parliament should give its consent however they said we are not even prepared to play this game because the UK Government has shown itself willing to press ahead with Brexit legislation irrespective of whether or not there is consent it says the UK Government has effectively suspended the Sewell Convention in relation to Brexit legislation and that there's therefore no points in granting consent given that in their view withholding consent will make not a blind bit of difference. Now like all things Brexit related we have to be careful because this may prove to be a temporary hiccup in relations between the UK and the devolved administrations and parliaments but there's also the risk that this is the beginning of a very difficult period in constitutional relationships within the UK and I guess that's a reminder that as well as making us look outwards in terms of thinking as Miller did about the relationship between UK and EU law Brexit has also forced us to look in at how our own constitutional system works and we're having to confront some fairly uncomfortable parts of our rather ramshackle constitutional system thank you. Thank you I just need to deal with so I can close this one down so I just have one slide for you to have a look at there you go so hopefully you can see that so what I'd like to do is to build on Professor Elliot's excellent presentation and outline of the case and try and relate it to some of the issues that we have within UK constitutional law and there are three things that I want to think about the first one I wanted to think about is what I decided to refer to as the sovereignty conundrum and the sovereignty conundrum comes with these rather lovely paragraphs that I put up here for you to have a look at and nicely they're next to each other so this is all to do with the issue with we're back to clause 17 and the problem we have with clause 17 and the Scottish continuity bill is that it would contradict provisions within the European Union withdrawal bill later act so the difficulty you've got is under the European Union withdrawal provisions it would be possible for Westminster to enact regulations to say we need common frameworks in this particular area so although this is an area that would normally be able to be legislated on by Scotland actually we're going to enact a regulation to say there's needs to be a common framework here and that will put this little area of power into the freezer as you put it on ice so basically for a period of time Scotland will not be able to legislate in this particular area but Westminster will be able to do that instead and enact these delegated legislations to transfer things across to Westminster and although section 12 says that this will be done with consent it's all these areas where consent is defined in an odd way and that no means yes so consent works as long as you've asked them and they've thought about it and even if they say no that can still count as consent it's an odd definition of consent but there you go the Scots understandably didn't particularly think this was consent which is why they enacted section 17 which would have required consent in these particular circumstances so that sets our understanding why we're dealing with this problem with section 17 but the difficulty we have is whether section 17 is out with the powers of the Scottish Parliament and we've thought about this in terms of is it out with the powers because in some sense it is contradicting the Scotland Act and that's one route and that comes through where you're saying okay Scotland can go away and enact legislation but what it can't do is to do something that would modify or amend or repeal certain aspects of UK legislation and one of the things that can't modify amend or repeal would be the Scotland Act itself including section 287 so if you enact something that's going to modify that that's problematic the other thing you can't do is to do something which will touch on the sovereignty of Parliament because this is reserved so reserved to the UK Parliament also various constitutional issues including the sovereignty of Parliament so we have these two possible routes by which we can say section 17 is problematic and we end up with this odd scenario in which in one sense it's not touching on the sovereignty of Parliament so it's okay but in the other sense it is impinging on section 287 but we see section 287 as a mechanism through which we preserve the sovereignty of the Westminster Parliament so you read these two aspects of the judgment you begin to think hang on a minute on the one hand this is not impinging on the sovereignty of Parliament but on the other hand it is modifying section 287 which is the proposition which preserves the sovereignty of the Westminster Parliament and you begin to look at this and think I am very confused I don't really quite understand how you can say both these things and the Supreme Court tries to square this circle in these two paragraphs so in the first paragraph from paragraph 63 it's saying we don't think that section 17 impinges on the sovereignty of Parliament why not because it does not purport to alter the fundamental constitutional principle that the Crown and Parliament is the ultimate source of legal authority nor would it have that effect Parliament would remain sovereign even if section 17 became law it could amend disapply or appeal section 17 whenever it chose acting in accordance with this ordinary procedures so okay there's no problem because even if you have section 17 which says you must have the consent of Scotland Westminster can just ignore it and then it goes away and says okay so what about this idea that you're modifying section 287 then and the Supreme Court says in its next paragraph the preferable analysis is that although section 17 if it became law would not affect parliamentary sovereignty yes you just told us that it would nevertheless impose a condition on the effect of certain laws made by Parliament for Scotland unless and until Parliament exercised its sovereignty so as to disapply or repeal it it would therefore affect the power of the Parliament of the United Kingdom to make laws for Scotland and so modify section 287 of the Scotland Act now if you're reading those and thinking my brain hurts then join the club because that's exactly what I thought when I was trying to understand these two contradictory provisions so I'm going to try my best to explain what I think they're trying to say and I may be wrong but let's give it a go and see if we can justify what they're coming where they're coming from so in some senses this is to do with understanding why there might be a condition okay so we're saying on the one hand it's okay because Westminster can just do something to ignore section 17 on the other hand we're saying it's got to go through some kind of processes so what they're basically saying Parliament is still sovereign but it's just now shifted to a different version of sovereignty because in some sense we've allowed it to have restrictions on how it enacts legislation so that's one possible way of reading it still sovereign Parliament is still the ultimate lawmaking authority so it can get out of these restrictions but there might be some kind of special arrangements and we might allow it to say that it can't do various things so if it wants to get out of section 17 it's going to have to do something ask Scotland or it's going to have to enact something that would imply the repeal it except it can't just apply the repeal it maybe it can't imply the repeal it because the Scotland Act is a constitutional statute and so as a constitutional statute it cannot be implied repealed and maybe the Westminster Parliament would have to expressly repeal this particular provision the other way of looking at this is to say well is this a different element to a manner of form you might think what is she talking about this time we'll look very carefully about what section 17 would require you to do because what section 17 would have required Westminster do is to get the consent of Scotland and that's not really best understood as a manner and form so a particular process about how you have to enact legislation that might be better understood as redefining Poland because it's not just that you have to go to a particular process you're essentially saying Scotland has to give its consent as well so is this a redefinition element do we deal with redefinition elements differently the other way of trying to think our way through this conundrum is to see it in terms of sovereignty and legislative supremacy so what we sometimes mean by sovereignty is are you the ultimate lawmaking power Westminster is the ultimate lawmaking power hence you get paragraph 63 it's not impinging on the sovereignty of parliament parliament is still the supreme lawmaker it still is the supreme body of making laws but it might be impinging on its legislative supremacy because it might be imposing conditions on how it has to enact certain forms of legislation and so therefore when we look down paragraph 64 section 287 says well they're imposing conditions and such is affecting the power of parliament to make laws but it's still sovereign because it still makes the laws in that area might be another way out of that particular conundrum another way of thinking about it is about time and there's a lot going on in this case that is about time and the importance of timing because are you looking here at this moment in time section 17 would be imposing a constraint on how you make laws in some way because it's saying go away and get consent so at that time it is affecting the lawmaking power of parliament even though parliament could get out of that in some way shape or form in the future so there's various possible ways of trying to square this bizarre problem and conundrum I'm not necessarily sure all of them are convincing but I'm just throwing them out there so you can have a think about how we deal with this particular issue the second point I'd like to talk to you about Professor Elliott was already touched on and that's the difficulties of conventions because we often talk about conventions and we say well it's okay to have these conventions because even though they're not legally enforceable they are politically enforceable there are effective political means of enforcing conventions and I think what this whole scenario is throwing up is that may only be true for certain types of convention and you need to think very carefully about who is it this particular convention is actually trying to regulate because when we're thinking about conventions like individual ministerial responsibility we can see a potential mechanism through which you can hold ministers to account for their actions you have aspects within parliament so you could ask questions of the ministers you have departmental select committees that can go and investigate what a minister is doing and this can all then be reported on and the media can pick it up and it could give rise to pressure to force a minister to resign so we can see their mechanisms for enforcing that particular convention when we go away and look at the Sewell convention it's very difficult to point to effective mechanisms Scotland can go away and say I don't like this I'm not going to give you legislative consent and then Westminster has to turn around and say oh dear well okay we better take that on board and modify the legislation except how much is there going to be any form of political pressure on Westminster to achieve that there are Scottish MPs in Westminster who can raise this there could be issues from the House of Laws that could raise this that come through from the Scottish Parliament but ultimately at the end of the day what is the sanction going to be if Westminster decides it's not going to comply with that particular convention so I think it's making us ask deep questions about when we are dealing with conventions and we say they need to be resolved politically how effective are the mechanisms to make sure that those conventions are upheld and if you can get out of these political constraints do we need to think more carefully about whether there should be other ways of enforcing conventions and it's all well and good for the Supreme Court in Miller to say this is supreme high constitutional importance but if that's coupled with no form of legal backstop if you breach it how do you ensure this is properly enforced in certain circumstances the third element I'd like to raise that I think is important for the constitution and this particular judgment is building on points about how devolution works and getting us to understand that when we're dealing with issues of the UK constitution you can't just think about law divorced from politics you have to think about law you have to think about political practice and you have to think about the internal rules of parliament if you're going to gather full understanding of how any particular aspect of our constitution works and to try and illustrate that I want to build a little bit on the differences reactions of Scotland and Wales so we know that Scotland refused to give consent but Wales eventually did give consent but in order to understand that we need to understand a little bit more about what was going on in the background so there is a Welsh continuity piece of legislation it was even enforced for a few months um it came into force in June and it came out of force in November and the reason it stopped having force was because there's a particular section in the Welsh version of the continuity bill which empowered a minister to essentially revoke the legislation which they did so why did Wales take a different track and was their track more successful partly because Wales is in a very different political situation so while Scotland essentially voted to leave uh remain i'll get it right Scotland wanted to remain this tells you how confusing brexit is you can't remember what we're doing from one day to the next um Scotland voted to remain Wales voted to leave which because you have different political backdrop to what is going on Scotland might be quite willing one day to go down the independence route there is less political will in Wales to go down the independence route so that gives you very different ways of working out well how do I express I'm not particularly happy about this particular piece of legislation a lot of what Wales was doing was exercising what we call soft power in the background so there will be meetings between ministers of Westminster members of the Welsh Assembly and there's been lots of discussion and deliberation at that level and eventually if you go and track it through you'll see there was a government statement with regard to its enactment of section 12 so well we basically had to talk about this we've had some discussions in the background and we don't think there's a real need for us to go away and exercise our powers because we don't think there's necessarily going to be any legislation that is going to cause issues with these common frameworks so it's like in the background you're negotiating and coming up with a solution and then once that is in place you have the ministers deciding that we don't need the Welsh continuity bill anymore whereas Scotland is in a different position was less able to collaborate in the background in some senses more willing to almost push the nuclear button and threaten the possibility of independence so when you're dealing with how devolution works you've got to think about the political realities as well as the legal structures and I think if there's any lesson for the Westminster Parliament from this case it is to think much more carefully about collaborating and that brings me back to my final point about timing because when the legislation was initially challenged to the AG reference procedure you did know about a very obscure subsection that adds the European Union withdrawal act to the pieces of legislation that can't be amended by Scotland but it wasn't necessarily a piece of the European Union withdrawal bill that got a lot of discussion in Parliament we're far too busy discussing other elements it was just sitting there waiting and the timing of this meant that when you brought the challenge it may well have been within the scope of the powers of Scotland with the exception of aspects of section 17 but by the time the law was going to come into force the European Union withdrawal act was in force which meant that a lot of the provisions that Scotland wanted to act differently could now no longer be enacted so the timing of this and the fact that it was the UK government that was able to bring this challenge legitimately makes you realise that there are perhaps legal mechanisms in the hands of Westminster to be able to enforce its will in a way that there aren't the same ability in Scotland, Wales and Northern Ireland to push back particularly in Northern Ireland where there is still no government so I think it's giving you an understanding of the law and the politics and timing in the reality of how devolution works I think that's the only comments I want to make about the constitution and now hand over to Dr Dane. Thank you. Well thank you both. I should preface my inflammatory remarks with a couple of government health warnings. First of all I'd be looking at this case from a comparative perspective. There was nothing wrong with that it's just that in terms of understanding the intricacies of the UK's devolution arrangements and comparative law as we'll see might not be that helpful. Secondly I'm a little bit more interested in the big picture than in the intricacies of the devolution legislation. I just want to make one more introductory remark which is about, follows on from Professor Young's comments about negotiations behind the scenes. One of the difficulties with these pieces of legislation and indeed with the Brexit related legislation in general such as the agriculture bill, the trade bill, the immigration bill is that they highlight the extent to which Brexit is blind and they highlight the extent to which there is no government policy about what the post-Brexit United Kingdom will look like. What you see in the trade bill, the immigration bill are broad enabling provisions to enable power, to enable policy to be made at some indeterminate point in the future. And it's very difficult I think for the central and devolved governments to negotiate about which policy areas should be dealt with by Westminster and which policy areas should be dealt with in Cardiff, in Edinburgh and in Belfast when you don't know what you are ultimately trying to achieve. We all agree that there should be a unified United Kingdom market for some goods and services but we don't know yet what the content of that United Kingdom market is going to be and that creates a serious problem of legislative and constitutional design and you should have that in mind when reading about this case and about the withdrawal arrangements more generally. So I am going to make two broad points, one about comparative law looking at this decision from a comparative perspective. The other about the relative timidity of the United Kingdom Supreme Court in the area of devolution relative to other areas it has been very active in. So first from a comparative perspective, I want to make four points. I am, despite the accent, also Canadian and I spent many years in Canada and I'm a member of the Bar of Ontario so I know a bit about Canadian constitutional law. I also know a little bit about American constitutional law. In Canada and the United States are federations. You have different levels of power. You have federal power and you have states or provinces which also have legislative power, power to make laws. And so my understanding of what courts should do or what I expect courts to do in a situation where you have multiple levels of lawmaking authority is first I expect it to be teleological. If you have done European Union law you know that the European Court of Justice is famous for its teleological approach. It looks to the broad underlying purposes of the European Union in order to interpret specific provisions. The Supreme Court of Canada uses what it calls the living tree doctrine that the constitution of Canada is a living tree which is growing and must be nourished by the jurisprudence of the Supreme Court. Now go and look at paragraph 12 of the Supreme Court decision in the continuity reference. The ordinary meaning of the Scotland Act is what matters. It's just like any other statute. You read the text. You don't look to the broader underlying objectives. That's from a comparative perspective very unusual. Now it's not it's not novel in this decision. There is a constant line of authority in the devolution cases in this jurisdiction which say that you have to read these statues by reference to their ordinary meaning. So it's not a novelty but it is odd from a comparative perspective. The second thing you would expect to see from a comparative perspective is judicial sanctioning the judges being comfortable with the idea of overlap between the different jurisdictions that both levels of government can legislate on the same subject matter. The Canadians call this the double aspect doctrine. So you might have a particular type of problem, regulation of advertisements on television for instance, which might have something which the federal level can regulate but also something that the provincial levels can regulate. But there's the broad point is that there is a level of comfort with the idea of overlap and the idea that you might have different regulations at different levels. You do have some of that in the devolution jurisprudence and you see some of it in this case. If you look at paragraph 99 you will see some of it. But when you get to the provisions that Professor Elliot outlined where the Supreme Court held and indeed the Scottish government, the lawyers for the Scottish government accepted that Frankovich damages and the general principles of EU law are inconsistent with the withdrawal act. From a comparative perspective that conclusion seems quite odd. It seems quite odd that you wouldn't allow the Scottish parliament to provide for these extra remedies, to provide for slightly different structures for the place of EU law in the Scottish system. You also see a paragraph 51. There is a discussion of what it means for there to be a modification of a provision of the Westminster parliament by the Scottish parliament. And that is not a definition that's all bad. It gives a significant degree of power to the Scottish parliament and the other devolved assemblies to make their own provision in areas they wish to. But it is still much less empowering of the devolved assemblies than, say, the Canadian approach. It's much less generous to the devolved assemblies than the Canadian double aspect doctrine. The third thing I would expect to see is a recognition that it is not all or nothing. That you can have, again, the federal level, or Westminster, saying one thing and also other levels saying slightly different things as long as they're not outright contradictory. But in the devolution jurisprudence and indeed in the devolution legislation, it's all binary. It's all or nothing. The acts of the Scottish parliament are either law or they are not law. Law or not law. And each of the individual provisions are either law or they are not law. And that, again, is slightly unusual from a comparative perspective. In other, in Canada, certainly, where there is a conflict between a local, a state, or provincial provision and a federal provision, the federal provision will trump. But it doesn't mean that the provincial legislation ceases to exist. It still exists. It's just inoperative to the extent of any inconsistency. Whereas here, you have a system where it is all or nothing. Either an act and a provision of an act of the Scottish parliament is law or it is not. It's a binary choice. And that is slightly unusual from a comparative perspective. The fourth thing, which is unusual from a comparative perspective, is in countries where there is a federal system. Again, you've got a federal level and you've got other levels. The courts tend to see themselves as guardians of the constitution. They tend to see themselves as standing up for constitutional values, standing up for the constitutional settlement, standing up for the balance of power between the different levels. This is very well put by Chief Justice Marshall of the United States Supreme Court in a case called McCulloch and Maryland in the early 19th century. And he says, we must never forget that it is a constitution that we are expounding. We are interpreting a constitution which is designed to serve the interests of the nation. And that's very different from the crabbed and narrow approach that the UK Supreme Court takes. The Supreme Court of Canada, as well as its living tree doctrine, also has a set of unwritten constitutional principles, the rule of law, federalism, protection of minorities, democracy. And these unwritten principles provide a constitutional architecture which the Supreme Court maintains and the federal and provincial governments are expected to contribute to. The UK Supreme Court has not been especially fulsome in its embrace of the devolution legislation. And it has not positioned itself as a guardian of the constitution in this area in the way that other apex courts have. Now I'm not necessarily suggesting that every Supreme Court should be a guardian of the constitution. Sometimes this goes horribly wrong. The United States Supreme Court, some people would tell you, caused or partly caused the American Civil War with its decision in a case called Dred Scott. So you can get it wrong when you're being the guardian of the constitution. And I'm not saying the UK Supreme Court necessarily should be the guardian of the constitution. I'm just saying that it looks odd from a comparative perspective that it refuses to take on that burden. That leads me to my second point about the relative timidity of the Supreme Court in this particular area. And again here it is helpful to have regard to the bigger picture. The bigger picture here, sections eight and 12 of the withdrawal act, is the power exercisable by ministers. So in other words, civil servants. They have the power to alter the scope of the authority of the Scottish Parliament. And as Professor Young has demonstrated, while the Scottish, while there is provision for consent, the meaning of consent in this context is rather unusual. Now with my Canadian hat on, again this seems extraordinary, that you would have ministers at one level of government altering the scope of the powers of another level of government is absolutely remarkable. And that is the broader canvas on which the Supreme Court was painting its decision in this case. And that makes its relative timidity and its resolute adherence to the ordinary meaning of the Scotland Act all the more remarkable. And if you think of other areas, the UK Supreme Court has been much more aggressive. It has seen itself as the guardian of the constitution. In the Miller case, it saw itself as the guardian of the balance of power between Parliament and the executive and individual rights. And it engaged in an interpretive exercise which was extremely creative. Some people would say flat wrong, but at the very least it was very creative and you could certainly see then as being motivated in that case by a concern to stand up for Parliament's role in making fundamental constitutional changes. You will also have studied the decision of the Supreme Court in HS2 Alliance where they spoke of constitutional instruments, Magna Carta and the Bill of Rights, the Human Rights Act, the Constitutional Reform Act, the European Communities Act, in the context of making a profound claim about the hierarchy of constitutional norms in the British Constitution. Are there some norms of British constitutional law which trump even European Union law? Again, nothing timid about the analysis in HS2 Alliance. In terms of the Supreme Court's development of a body of common law constitutional rights, there has been no timidity at all. And in fact, even though there is the European Convention, as incorporated by the Human Rights Act 1998, in a series of decisions Osborne, Kennedy, the Supreme Court has insisted that the common law, as interpreted by the Supreme Court, retains its vitality and vigor. Again, no timidity there. And again, the Supreme Court positioning itself as the guardian of fundamental constitutional values. Not so here. In HS2 Alliance, when they were listing the important constitutional instruments, they did not mention the devolution statutes. Now there was another case. It's a case called H and Lord Advocate, where Lord Roger talks about the fundamental constitutional nature of the settlement affected by the devolution statutes. So it's certainly on the radar. But you would be hard pressed to say that the Supreme Court has been a champion of constitutional values in the area of devolution. And I'll conclude with another big picture point, because this really is a big picture point. And it is informed by having some experience of the Quebec Secession movement in Canada. For most of us in this room, Brexit will be a life defining event. It is probably, for most of us, the most momentous political and legal event that we will live through. But for some other groups, an event like Brexit is merely a point on a much longer historical arc. It's that way for the Irish republicans. You don't see the Sinn Féin representatives at Westminster rushing to take up their seats to vote on the withdrawal agreement. Why? Because they are interested in a much longer arc of history. Same for the Austro-Unionists. And the same, also possibly, for the Scottish nationalists. And decisions like this one, again, looking at the broader picture, looking at the ability of ministers to alter the scope of the devolution settlement, it is a grievance. And it is a grievance, which is, I do, a legitimate grievance, and one which will be nurtured over time and is unlikely to be forgotten about. And whether the Supreme Court likes it or not, it is an actor in the broad arc, the broad arc of history. And it is worth remembering that when section 12 of the withdrawal act came to be debated in Westminster, when there were amendments put down to section 12, there were 15 minutes of debate. And the leader of the Scottish National Party was ejected from the chamber because of his protests. And he was followed by other members of the Scottish National Party. That's in the background here. And what Mr. Blackford, who's the leader of the SNP at Westminster, said to reporters after he had been ejected, was that this is the beginning of something, not the end. Against the broader arc of history, we will see where we end up. Thank you. Thank you to all of our speakers. Now we have a bit of time for questions. So does anyone want to start us off?