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.
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 @jolyonmaugham
I am grateful to Jim Fitzpatrick (@jimfitzbiz) for the information that led to this post.