LONDON — The government today wrapped up the second day of its Supreme Court battle to trigger Article 50 without parliamentary consent.
At the heart of the issue is whether the government can use an executive mechanism called the Royal Prerogative to take Britain out of the EU, or whether it must push a bill through parliament first.
But the case raises further constitutional questions. In particular, if the Supreme Court does rule against the government, it must rule on whether Scotland’s devolved parliament must also first approve the bill.
Scotland is pro-Remain territory, and its first minister Nicola Sturgeon wants to stay in the Single Market. A government spokesman confirmed in a statement to Business Insider on Tuesday that Sturgeon would publish proposals “within weeks” to “keep Scotland in the single market … even if the rest of the UK leaves.”
Sturgeon would be in a much stronger position to lobby for single-market access if Downing Street was forced to seek a vote in Scottish parliament, and this aspect of the case is therefore very significant.
The Scotland Act
So what does the argument hinge on? The crux of the issue is an obscure piece of devolution law called the Sewel Convention, or Section 2 of the Scotland Act 2016. It reads:
” … it is recognised that the parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish parliament.”
That was a piece of legislation introduced this year, which codified the idea that the UK typically consults Holyrood before introducing pieces of legislation which affect Scotland.
James Wolffe QC, Scotland’s chief law officer, is responsible for arguing on behalf of the Scottish government in the case. He argued in a brief submission to the Court that the UK is legally bound by the statute to seek approval from Scottish parliament.
Lord Keen QC, Advocate General for Scotland, spoke on behalf of the British government, and said Wolffe was “plainly wrong” to assert that UK parliament is legally constrained by any “constitutional conventions” regarding devolved matters.
In essence, Keen’s argument was that even though the Sewel Convention is part of the law, it is actually a mere agreement of general practice, rather than a binding legal mechanism. He referred to it as a “statutory expression” of the “political convention” that Westminster will normally seek approval from Holyrood.
Supreme Court justice Lord Sumption asked Keen: “Do you submit that [the Sewel Convention’s] incorporation into an Act of Parliament makes no legal difference to its effect?”
Keen replied: “I do.”
That is crucial. If the Supreme Court rule justices rule against the government but decides that the Sewel Convention isn’t legally binding, Scotland’s plans for a soft Brexit may be derailed entirely. Philip Hammond has already made it clear that he will permit no special deal for Scotland, and his case will be strengthened if Scotland loses its biggest bargaining chip.
Will the government win this particular argument?
Legal opinion on whether a bill will go to Scotland is divided, as Business Insider has previously noted.
However, George Peretz QC — whose chambers has three lawyers involved in the Supreme Court case — told Business Insider on Tuesday that it is “pretty obvious” the Sewel Convention is legally binding.
“There’s a pretty powerful case made by Wolffe that the Sewel Convention is would be engaged by a piece of legislation that triggered Article 50,” he said.
“That is especially true on the proposition which is necessary to be bought before any of this gets off the ground — anyway, which is that the UK parliament needs to give its authority to trigger Article 50.”
He added: “If you accept that “destruction of rights” argument the claimants are relying on, it becomes pretty obvious that because the Sewel Convention is legally engaged, because a lot of the rights being destroyed are devolved matters within the remit of the Scottish Parliament.”
Wolffe is expected to lay out the Scottish government’s case for a parliamentary vote on Wednesday morning.
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