In the Miller case, the High Court determined that the UK Government may not trigger Article 50 by use of the prerogative alone. Parliamentary authorisation must be obtained, apparently through primary legislation. The UK Government is appealing this case to the Supreme Court, which has approved new interventions from inter alia, the Scottish and Welsh governments, and the Independent Workers of Great Britain (IWGB).
The Scottish Government’s arguments in Miller
The basic elements of the Scottish Government case, which is to found in the Lord Advocate’s written case here, contends that notification under Article 50 would necessarily lead to:-
(i) a fundamental alteration of the UK’s, and particularly Scotland’s, constitutional arrangements, by removing it from the EU and so significantly altering the devolution settlement;
(ii) a material alteration of the law applicable in Scotland, including in particular: (1) rights enjoyed by persons in Scotland; and (2) functions exercised under the current devolution settlement by the Scottish Parliament and Government.
The need for Legislative consent
Would legislation by which Westminster authorizes the Government to trigger Article 50 require consent of the Scottish Parliament? By constitutional convention, devolved parliaments are asked for their consent when Westminster either legislates with regard to devolved matters (see now s. 28(8) Scotland Act) or where it legislates to increase or reduce their powers (see DG GN no 10), although the status of the former as mere convention is disputed. It is argued that a Bill allowing Article 50 to be triggered, because it would lead to a situation whereby the Scotland Act 1998 must be amended to remove the obligation to comply with EU law (see s. 29(2)(d) Scotland Act 1998), would change the competences of Scottish institutions, and so trigger the need for the Scottish Parliament’s consent. It is also argued that such a UK Bill would intrude on matters that fall directly within the competence of the Scottish Parliament. Would the devolved nations give their consent? The issue is highly politically charged. Nicola Sturgeon has stated she would ask the Scottish Parliament to withhold consent to prevent Scotland being taken out of the EU against its will.
The Claim of Right and the Act of Union
The Lord Advocate also claims that triggering Article 50 by unilateral act of the Crown would be contrary to the Claim of Right 1689 and Act of Union 1706. Drawing on these statutes illustrates that Scotland and England have different constitutional traditions, and historically different views of the Crown’s privileges. The Claim of Right argument is based on an assertion, in the 1689 Claim, that the monarch is always answerable to the law and people, and government only has such powers as expressly granted to it by the people in representative assembly.
The Acts of Union contain a specific restriction concerning changes to private law in Scotland. Article XVIII of the Union with Scotland Act 1706 harmonized trade laws in Scotland and England but otherwise protected the separate Scottish legal system. It provides that any alteration to Scots private law may be made only where Parliament determines that such alteration is for the evident utility of the people of Scotland. It is argued that the UK’s withdrawal from the EU would result in modifications to Scots private law (eg employment and consumer rights derived directly from EU law) without any decision by Parliament that such alteration is indeed for the evident utility of the Scottish people – especially given that 62% of the Scottish Referendum vote was for Remain.
A constitutional crisis?
The UK Government is robustly attacking the above claims. To be sure, the Sewel Convention provides that Westminster will not ‘normally’ invade devolved competences without their consent. But if ‘normally’ simply means the UK Government’s stipulated interpretation, then the provision is ineffective beyond commonplace issues. What if the UK Government were to press ahead with legislation in the absence of consent from Scotland? Although conventions are not legally enforceable as such, it is clearly unconstitutional to disregard them, and actions violating them can have considerable consequences. For example, in 1909, when the House of Lords rejected Lloyd George’s ‘Peoples Budget’ in spite of the convention that the Upper House would not reject money Bills, this led to the 1911 Parliament Act which seriously curtailed the power of the House of Lords.
Therefore, even if it is not correct to say that Scotland could ‘block Brexit’, the Scottish arguments in Miller will be challenging, and the Supreme Court may have to determine the issue of legislative consent. Of course, the Court may heed the term ‘normally’ in the Convention and declare Westminster’s sovereign power to legislate on any matter. In such circumstances, deprived of any meaningful engagement in Article 50 negotiations, and faced with legislative amendments in the absence of legislative consent, devolved governments might lack legal options. This, however, would renew debates about the nature of the union and could trigger a second Scottish Independence Referendum. In this way, the UK’s exit from the EU could lead to the break up of another union – that of the United Kingdom itself.