(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.Follow @jolyonmaugham