(The following was published in Saturday’s Times. I reproduce it here, several days late, for those without subscriptions.)
What an ugly aftermath. Leave or Remain, we cannot ignore the Referendum drove wedges into our communities. And hammered deeper ones still between them. Between old and young. Between the glittering cities and the boarded-up market towns. Between globalisation’s winners and its losers. And, most starkly, between the vocal demands of populous England and the stifled voices of Scotland and Northern Ireland.
On Monday, and for the three days following, the Supreme Court sitting in London will hear the Westminster Government’s Article 50 appeal. And, unlike at first instance, the Scottish Government will be heard through the Lord Advocate.
And this is what he will say.
Triggering Article 50 is like firing a bullet. It cannot be recalled to the chamber. Its destination is the United Kingdom’s departure from the European Union. And leaving the European Union will ineradicably reshape the devolution settlement. Certain devolved powers will be lost. Others will be enlarged. Fresh financial burdens will fall upon Scotland. The funding settlement will change. All of this, he will say, cannot be done by Theresa May. It must be authorised by the Westminster Parliament.
In a narrow legal sense, the First Minister, who speaks through the Lord Advocate, is in a weaker position than the individual respondents. She relies on the Sewell Convention, which allocates power between Westminster and Scotland. It goes on to provide that Westminster shall not legislate to change that allocation without the consent of the Scottish Government. But it contains a vital legal proviso: it only applies in normal times. In abnormal times, Westminster can do what it likes. And what times, you may ask, are more abnormal than these?
But to focus on that legal weakness is to ignore its political strength.
One cannot overstate Nicola Sturgeon’s frustration with the choice to pull the trigger on Article 50 before meaningful consultation. There’s been barely a postcard. The much feted Brexit hotline, I was told by one senior adviser to the Scottish Government, doesn’t actually work. If you dial the number no one picks up. And although the Lord Advocate’s written case runs to 58 pages of close legal argument you can take any one, crumple it up, wring it out and extract the same political essence. ‘Please,’ it says, ‘you must hear Scotland’s voice. Do not leave us unheard.’
Ignore that plea and the slight will be hard felt by the SNP’s political constituency – but not by it alone. It will be felt, too, by all who voted Remain, and by others in Scotland wrestling with the right balance between self-determination and a sense that the Union has served them well. The political scales may weigh, today, against a further referendum on Scottish independence. But there is no world in which Theresa May, ignoring the First Minister’s plea, does not add weight for a generation to the argument for independence.
There is a cynical reading of the Scottish Government’s case: it seeks to confront Theresa May with an ugly choice. Either she says, boldly and clearly, that she may legislate without regard to the Scottish Government. Or she gives to Scotland a right to Remain, whatever the impact on the rest of the United Kingdom. The former delivers a major boost to Scottish Nationalism. And the latter is impossible: it leaves Theresa May unable to fulfil her promise that Brexit means Brexit.
If that reading is right, and I do not think it is, it has not yet worked. The reply from David Davis’ lawyers is unedifying in tone – at one point it comes close to calling the Lord Advocate’s arguments not only wrong but stupid to boot – but it does manage to tiptoe around the central dilemma that the Lord Advocate poses. Whether that stance will survive Monday’s hearing remains to be seen. In oral argument the Supreme Court may well put the question squarely to the Government. And then we will see.
For the disinterested observer, of course, this is fascinating. I know from my hours spent wrestling with the ontological question ‘what will Brexit mean’ how the crisp, knowable drama of the law flows as fresh breeze. But, of course, few of us are disinterested. The stakes – for Scotland, for democracy, for our economic wellbeing, for our children – could hardly be higher.
And ultimately, it is not the law that will resolve these issues. Even if Theresa May loses – even if the Supreme Court says that only Parliament can alter the constitutional settlement between Scotland and the rest of the UK – she has signalled she will not respond in good faith. Her telegraphed solution – an immediate single clause bill might respect the form of the constitutional requirement for a Parliamentary mandate – but it will ignore the substance.
The right way forward is this.
There must be a proper consultation with the Scottish Government. There must be a genuine attempt to find solutions that respect the devolution settlement and that protect the wishes of a Scotland that voted overwhelmingly to Remain. The democratic mandate of the Westminster Parliament, too, must be harnessed and cherished. That Parliament must be allowed to shape the terms upon which we exit the European Union, if exit there is to be.
This is the only way that all voices can be heard. It is the only way for us together to overcome the failings of an extraordinarily divisive referendum – and an aftermath more damaging still. It carries risks for the victors – they may not get all of what they want. But the consequences of acting otherwise – a fractured nation, a shattered union, permanent social division – do not bear contemplation.
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Waiting for Godot 
The Scots had a referendum on whether they wished to remain as part of the UK. They decided that they did. The UK is the EU member.
The UK then had a referendum on whether it wished to remain in the EU. It did not. So the UK leaves. End of conversation.
As usual, the Scots are whining because they have not got what they want. When they do get what they want, they continue whining for more. Enough.
London and Northern Ireland wanted to stay in too. What about them? Are we going to continue making special arrangement for noisy minorities? Democracy is about the majority and the majority wants out, the sooner the better. The legal profession would do well to ponder on the will of the majority rather than a noisy minority.
The whole Article 50 is a red herring anyway. As has been pointed out, the European Communities Act 9172 set the whole thing up and conferred rights upon the population. It also took many rights away, not least of which is our sovereign right to make and repeal our own laws. We have to accept EU directives whether they damage us or not.
Lisbon was a re-hash of the EU constitution which had been turned down by the three countries given the chance. Gordon Brown signed Lisbon under Royal Prerogative and unless Art 50 has been explicitly enshrined into UK law, there seems no reason why it cannot be invoked under the same powers.
Actually, we should not be bothering with Art 50 at all but rather repealing the 72 act which is the lynch pin to the whole thing. At a stroke, we could stop paying in, kick out all the EU undesirables and ensure that only those we wanted in could come in. We would reclaim our fisheries which have been plundered to the point of destruction by the EU under a totally false premise that was only regularised at Maastricht.
As for the Scots, they are in the happy position of voting in Westminster on matters that affect me but my MP cannot vote on things that affect Scotland because they have their own hideous parliament to do that.
I am not alone in wishing that part of the money we save from the EU be spent on re-building Hadrian’s Wall and letting the Scots stew. No currency, no diplomatic service, no passport and driving licence system, no EU (they would have to apply to join and that takes years) and no military defence. Nobody asked the rest of the UK whether we wanted the Scots. I bet if that question was asked, Scotland would be cast adrift in a heart beat.
This whole exercise is designed to tie up our leaving in endless legal knots which might even end up at the ECJ which would do what it always does and make it up as it goes along.
Once more we are handing over our decision making to others. Repeal the 72 act and be done with it. Then we can start talking about cars, fish, agriculture, air travel and everything else. To suggest that we would need visas to travel to the EU is absurd, but if that is how they want to play it, we can look forward to UK holiday makers and retirees going to other destinations. Spain will not be pleased.
Mr. Chippy. Another sour Britnat Brexiteer who appears to hate everybody.
At the end of paragraph 2, the conversation supposedly ended, but somehow carried on for another 9 dreary Britnat foreigner-bashing paragraphs, Was it only the Scots part of the conversation that had to end? Apparently not, as Scots being the one group of foreigners singled out for most bashing.
The piece is littered with the usual Britnat inaccuracies and other nonsense.
So we shouldn’t make special arrangements for noisy minorities? I wonder if the bankers agree with that, or Nissan, or any of the other noisy minorities who are likely to get special deals. And the Irish have already been offered a special deal, so the answer to the question you posed appears to be yes.
It’s true that rebuilding Hadrian’s Wall would leave the Scotland on the other side, but along with them would go most of the North East of England. Perhaps that wouldn’t concern the Britnats, who probably think the English Northerners are pretty foreign too.
Setting aside the distinction between EU “undesirables” and British “retirees and holidaymakers”, kicking them out would almost certainly provoke retaliation from EU countries and I doubt the UK government would be keen to have the responsibility (and the medical bills) for several hundred thousand pensioners dumped on them. But Brexit means Brits all exit, so that’s ok. Holidaymakers could go elsewhere. Where would you suggest? Turkey? Saudi Arabia? Russia? Or perhaps further afield? China? Good luck getting into these countries without a visa, not to mention the cost of getting there.
Best of all is the long list of things Britnats believe that Scots are uniquely incapable of doing and the suggestion that the rest of the UK would cast Scotland adrift “in a heartbeat”. Perhaps the Britnats would vote to cast Scotland adrift, but despite the drain on UK resources that Scotland represents and the current austerity measures imposed, it seems strange that the UK government isn’t suggesting this obvious cost saving measure. I wonder why? Certainly it’s not out of friendship, is it?
I still don’t see the logic in this though. How could that all be agreed before we trigger?
Art50 is one way to leave – the best way in my opinion – as it obliges the EU to talk to us for two years. If you want any kind of amicable deal, if you want to sit at the table to talk, you need to trigger it. I don’t follow the logic we need to have some kind of far reaching agreement within the UK about every facet of the consequences before even triggering art50. This does not represent the real world as I look at it.
A relevant case in this sense is the Bear Stearns bailout in 2008 (a US story of course). Lawyers could have spent years debating every aspect of that bailout (the rights of shareholders, debt holders, of JPM, of the employees etc) … but the fact was Bear needed a bailout before the market open and… it just got done.
Sadly there is no such immediate time constraint on legal Brexit other than the slow burning revolt of the population. That recession didn’t materialise, in fact the economic data has since improved again, and further drawn out delaying tactics will push more and more people to favour harder exit options.
Had Dave been even slightly prepared before the referendum (something that was always essentially a 50:50 proposition) then some of this might have avoided. But that’s for another day.
Is it not a function of the law to afford protection to minorities be they noisy or not? There has been a lot of mention of Henry VIII clauses, the Glorious Revolution and other such like and a reading of Irish history in light of these events will show why it does warrant special attention.
Regarding the Lord Advocate his argument was only Parliament can change the law in Scotland which rather negates the Prerogative power which Lord Pannick argued never existed in this case. Sorry if that sounds like whining but it would appear to be the law and that is what the Supreme Court has been asked to rule on.