Section 29(2)(d) of the Scotland Act 1998 provides, somewhat inelegantly, that a provision of an Act of the Scottish Parliament is not law if it is incompatible with EU law.
To similar effect, section 57(2) of that Act provides:
“A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”
These provisions caused Sir David Edward, a former judge of the European Court of Justice and a very serious lawyer indeed (as well as being an exceptionally nice man), to suggest to the House of Lords Select Committee on the European Union that you would need legislative consent from the Scottish Parliament to withdraw from the EU (see paragraph 70 here and question 17 here).
The easiest way to understand his point – or the easiest way I can find to explain it – is this.
The sections of the Scotland Act I have set out above would, if unamended, leave the Scottish Parliament and Scottish Government bound to act consistently with EU law. That would be a nonsense if we were no longer ‘in’ the EU. Moreover, there is a constitutional convention – the so-called Sewel convention – that (with one proviso) the Westminster Parliament needs the consent of the Scottish Parliament to legislate on matters that have been passed to the Scottish Parliament (so-called “devolved matters”). So, the argument runs, in order to amend the Scotland Act 1998 to enable the Scottish Parliament and Government to act inconsistently with EU law, the Westminster Parliament would need the consent of the Scottish Parliament. And (given that, in the Referendum, Scotland voted ‘Remain’) the Scottish Parliament would not give it.
The problem with the argument, at least as I see it, is the so-called proviso. The Sewel convention has now been enacted in section 28(8) of the Scotland Act 1998. You can see it here but what it says in context is:
(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.
You remember that proviso I mentioned? The Westminster Parliament retained a residual right to legislate without the consent of the Scottish Parliament in non-normal circumstances.
And if a decision in a UK-wide referendum to depart from the European Union is not a non-normal circumstance I don’t know what is.
The Scottish Government website also makes reference to a Devolution Guidance Note 10 which you can read here. That note provides, relevantly:
And were I arguing in court for the Westminster Parliament, I would certainly be saying that the need to amend legislation to enable the Scottish Parliament to act inconsistently with a law that no longer applied was incidental to or consequential upon the decision to remove the United Kingdom from the European Union.
It follows that, with real deference and respect, I disagree with Sir David.
Follow @jolyonmaughamI am grateful to Jim Fitzpatrick (@jimfitzbiz) for the information that led to this post.
Waiting for Godot 
The United Kingdom has nothing in the long-term to fear from Brexit. For according to global studies by Japan (MITI) in the 1980s and Germany in the 1990s concerning the basic seeds of economic dynamism and whose thinking at the fundamental level has created the modern world, Britain leads the world by a mile. Indeed according to the Japanese and Germans, 53% and 54% respectfully.
Therefore the UK has only to release this currently untapped gold-mine of creativity, and where we will lead the world in 20-years time. I just hope that the new independent government listens this time unlike the Blair government. For they have to listen to the people this time and invest in them, as the British people hold the secret and not just the scientists.
‘Why the ‘Innovation Chain’ is so Important for the Future World and Why things have to Change for Humanity’- http://worldinnovationfoundation.blogspot.co.uk/2014/02/why-innovation-chain-is-so-important.html
Isn’t the other problem with the argument that, if the Scottish Parliament doesn’t consent, then it is left in the rather silly position that Scotland isn’t part of the EU, but its legislation has to be consistent with EU law. Inconvenient for Scotland, but not terribly relevant for anyone else.
So refusing to consent is a bit like robbing a bank with a gun to your own head.
OK
And how long will that take to resolve in court?
Richard
yes… you have to work quite hard to find a right on the part of Scotland to consent to the pushing of the Art 50 button. I only wrote this piece because the argument is gaining quite a lot of traction on t’internet
could probably be done in a couple of months…
I’m not a constitutional lawyer, but this seems even more fiendishly complicated than is suggested here. See https://constitution-unit.com/2016/06/13/removing-references-to-eu-law-from-the-devolution-legislation-would-invoke-the-sewel-convention/ .
This point may or may not be a runner; but it does seem to me to be an example of just how clagged up, legally and constitutionally, Brexit may get.
We should never have gone near a Referendum process. And just to sort out an internal Tory division, too!
Hi there, it is worth considering the definition of a refendum: a vote on a single question for a direct decision. Whateve way you construe things, if there is a material risk of a Scottish mandate to stay there is a constitutional crisis in the making if Scotland votes to decouple and stay in the EU prior to secession of the U.K, and what is left of the British state continues to act on the mandate and cecede. The crisis comes about because the question put to the British people was a question relating to the secession of the whole United Kingdom, and not just England and Wales (and I express no view about NI). This is no mere wordplay or detail. It is a wholely different proposition both legally and practically/economically for one part only of the U.K. to secede, than the UK entirely. It has implications in terms of border controls with Scotland being the new frontier, and would reset or increase any perceived power asymmetry in trade negotiations both with the EU and indeed the rest of the world. In short, parliament is constitutionally and politically constrained by the material prospect of having the existing mandate no longer operating as a coherent indicator to the legislative body of an outcome that it can delivery by invoking article 50 or even passing its own legislation, and as such parliament must plan for this possible outcome. Indeed, the referendum has delivered through its regional divergence this outcome as the current most likely prospect. Your views please?
I see Nicola Sturgeon got onto this point pretty quickly this morning (whatever its merits). Someone must have pointed it out to her! See BBC Scotland at https://v.gd/y7xca0 .
I believe if the Scottish parliament can veto brexit then they should to save the people of the UK a right wing torrie government.
I agree. If.
I don’t believe that a veto will be anything more than a tactical move. Any legal action to enforce a veto will simply be rendered a nullity by the exercise of Parliament’s sovereign right to change this law with a simple amendment, or to obtain a court order mandating the performance in Scotland of whatever secession mechanism parliament determines to use. I think the real constitutional issue is 1. the far more profound step of parliament voting for a secession that will bring about the undoing of its own existence because Scotland will leave the Westminster Union, and 2. As I say above the incoherency of following a plebiscite that no longer can be achieved because through a material change in circumstance there is no Union to cecede.
An interesting point: the way people voted appears to have been heavily biased towards whether you were born before or after the UK joined the EU. It has been estimated that if the vote had happened 2 years later enough old people would have died and enough young ones become eligible to vote to swing the results the other way.
Is this result democracy or timing?