The most powerful devolved parliament? Let’s ask the Supreme Court
Next week will be an interesting week for those interested in the powers of the Scottish Parliament.
The case over who has the right to initiate article 50 will arrive at the Supreme Court, and the Scottish Government has intervened. In his written submission the Lord Advocate James Wolffe QC is making two main arguments on behalf of the Scottish Government.
First, he is adding a Scottish angle to the position that article 50 needs the consent of the UK parliament. He will state that the Acts of Union and the Claim of Right Act 1689 ensure that any UK decision that affects Scottish law has to be passed by the UK parliament. This is counter to the UK government case. They are trying to use what is called Royal Prerogative to bypass parliament, this is an antiquated power deriving from the monarch.
His second argument is more interesting. Since 1998 relations between Westminster and Holyrood have been governed by the Sewel Convention. The Scotland act of 2016 states that Westminster:
will not NORMALLY legislate with regard to devolved matters without consent.
The Lord Advocate will argue that before Westminster can initiate article 50 the consensus of Holyrood must be sought as:
withdrawal of the UK from the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention.
He is hoping that the judges rule that Westminster must consult Holyrood before embarking on the article 50 process, even if they refuse to take heed of the position of the Scottish Parliament. If this were to be the case it would put Theresa May in a very awkward political position. It would peel away the facade of mutual cooperation and partnership that was meant to be the bedrock of the Scotland Act 2016.
We know that the UK government are going to argue that Sewel is just a convention and as such has no legal relevance. Their case is that it is a political issue not a judicial one. What they are really saying is we like to give Scotland the impression it has power but really it’s just diplomatic chicanery.
The use of the word ‘normally’ in the convention as written in the Scotland Act 2016 is going to be a key argument here. In their written submission to the court UKGov argue:
whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention
This is fair enough, in a legal sense but, surely on a political level, these issues are fundamental.
In the dying days of the 2014 referendum campaign a panicked UK government, sent Gordon Brown to tell us that in the event of a no vote we would have:
as close to federalism as is possible.
David Cameron talked about how the Scotland Act of 2016 would make Scotland:
one of the most powerful devolved parliaments
On the subject of the Scotland Act 2016, the Scottish Secretary David Mundell delivered a speech entitled “New Parliament, New Powers, New Partnership“. He said the following:
Now is the time for us to work together to improve all aspects of our country and the lives of all of our people. It’s time for a new relationship and a new mind-set. To put our disagreements aside and put our talents together. To learn from each other and help each other. People are sick and tired of the bickering and blame. They are ready for this new relationship, and it’s time we politicians stepped up to the plate and delivered it.
Many people already feel that the Scotland Act 2016 fell far short of what was promised. Next week, it may look weaker still.
For it is possible that a judge may rule that “one of the most powerful devolved parliaments” doesn’t even need to be consulted when its laws are altered. That it has no input when its people are being forced down a major constitutional road, that in June they voted against.
This may well be the legality of the situation, but surely most reasonable people should find these circumstances troubling.
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