This post is about whether Brexit requires legislative consent from the devolved legislatures, particularly the Scottish Parliament, and what that consent relates to – whether the whole process of Brexit, or only aspects of it. It argues that the English and Welsh High Court’s judgment in the Miller case ( EWHC 2768 (Admin)) on the use of prerogative powers alters the position significantly, and that the implication of that judgment is that the consent of at least the Scottish Parliament is needed for the triggering of Article 50. Whether that will be the case depends, of course, on what the UK Supreme Court has to say when it comes to give its ruling on the issue early next year.
Apologies if this seems like a long and technical discussion of legislative consent. But while there has been much discussion about the need for legislative consent – mainly, Scottish assertions that Holyrood’s consent is essential and can therefore be used to block the UK’s departure from the EU, contradicted by various UK politicians including Theresa May, David Davis and Jeremy Wright – there hasn’t been much analysis in terms of the rules that govern the Sewel convention. (There’s a detailed discussion of that HERE.) As a result there is a great deal of confusion about what does and does not require legislative consent. In fact, the rules are quite simple.
- Legislation which affects devolved functions requires consent – by convention for Northern Ireland and Wales (until the current Wales bill comes into effect), and by statute for Scotland. (One might call this the ‘policy arm’ of the convention.)
- Changes which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers also require legislative consent, by convention. That applies whether the change removes functions from the devolved legislature or executive, or confers new functions on either of them. (This can be called the ‘constitutional arm’ of the convention.).
- As a convention, it is not justiciable before the courts – but the statutory arm of it is. Otherwise, the UK Parliament remains sovereign, something explicitly stated in all the principal devolution Acts.
- In any event the convention contains an exception so that in some circumstances it may not be binding – the convention only applies ‘normally’ – though no-one can have a clear idea what that exception really means.
(So far as Scotland is concerned, the key text is Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland, available here. Although that is an internal document of the UK Government and has not been revised since 2005, it was in fact agreed between the two governments.)
Working out whether the convention applies in its policy arm is easy enough conceptually, but rather harder in practice. The test is whether the Westminster legislation would be within the competence of the devolved legislature if it were tabled for consideration there. If the legislation could be passed by the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly, it requires their legislative consent. (As it can be hard identifying the boundaries of competence of the National Assembly for Wales, it can be particularly difficult applying that test there.) Ultimately, as this arm of Sewel is now statutory for Scotland, this is a matter for the courts.
We do not, of course, know what form the UK legislation to enact Brexit will take. Depending on the Supreme Court’s view, it may involve Parliamentary approval for the triggering of Article 50, which if needed is likely to be an Act rather than a resolution (to put the question beyond doubt). Theresa May has said that subsequently there will be a ‘Great Repeal Bill’ to transpose existing EU obligations into domestic law and replace the European Communities Act 1972. There may need to be further post-Brexit legislation as well.
So far as Scotland is concerned, international relations including EU matters are reserved, and purely within the competence of the UK Parliament. Key provisions of the European Communities Act 1972 are also protected provisions and may not be modified by Holyrood. They are similarly excepted for Northern Ireland. Any attempt by Holyrood or Stormont to legislate for them would be beyond the legislature’s competence, so Sewel in its policy arm would not apply.
Arguments about whether legislative consent is needed for Brexit therefore appear to rest on the constitutional arm. Here, there seem to be two arguments. First, that Brexit affects devolved functions which are subject to heavy EU influence – which includes most devolved functions, but with agriculture, fisheries and the environment at the top of the list. They are not reserved, but the devolved government and parliament are subject to the general requirements to comply with EU law. The argument seems to be that these functions would be changed by Brexit, and consent to that is needed. That argument makes the assumption that there would be some sort of UK-wide policy for them once the UK leaves the EU. Indeed, at least some from the SNP has been keen to call for that not to be the case, and control of these areas to be left wholly to the Scottish Parliament. If the UK Government were to agree (and there are good policy reasons why it might – it will have enough to do with implementing Brexit on top of adding a UK framework for these policy areas), that argument falls away. By agreeing to allow these policy areas to be devolved, there is no change to devolved functions so no need for legislative consent. Ironically, demands to enhance the devolved legislatures’ powers in one respect undermine their claim to need to consent to UK-wide changes in another. If the UK Government were to make a clear official statement on this (and the Scottish Secretary has already suggested this), the matter would be resolved beyond doubt.
The second reason why devolved legislative consent might be needed is because it will involve changes to the text of the devolution legislation. (See, for example, Sionaidh Douglas-Scott here.) Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland makes it clear that
- provisions which either do not apply to Scotland at all, or which do apply there but relate to reserved matters under the Scotland Act 1998,
- or provisions which apply to Scotland and relate to reserved matters, but also make incidental or consequential changes to Scots law on non-reserved matters
do not need legislative consent. This does not provide that any change to the text of the Scotland Acts requires legislative consent – only when that legislation changes the legislative competence of the Parliament or the executive competence of the Scottish Ministers. It relates to substantive effect, not form, and not to incidental or consequential changes relating to reserved matters. And the significance of those changes depends on whether the UK Government seeks to legislate for a reserved matter – determined ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’ (section29(3)). Legislation to give effect to Brexit clearly relates to a reserved matter.
There is a secondary aspect to this. Douglas-Scott makes the argument that changing the Scotland Act 1998 to remove references to EU obligations would be needed. (The key ones are section 29(2)(d) and section 54(2)). Those references would be constitutionally and politically superfluous, but (at least arguably) binding if they remained in the text of the Act. If correct, that would require Scotland still to comply with EU obligations after the UK as a whole left the EU, so far as devolved (non-reserved) matters were concerned. That would be a highly complex and even perverse outcome. However, this view would seem to be legally mistaken. The Scotland Act 1998 (as amended) defines EU law as ‘(a) all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties’ (section 126(9)). It does not define ‘EU Treaties’. The statutory definition of those is in section 1(2) European Communities Act 1972 (which is one of the ‘protected provisions’ that only Westminster and not Holyrood can change). If this is repealed through the Great Repeal Bill, references to EU law in the Scotland Act 1998 become meaningless; they would refer to nothing that has legal effects within the UK. Even if legislative consent were needed for that change, which is unlikely since it concerns a protected provision, the only legal effect of withholding it would be to leave irrelevant clutter in the Scotland Act, not the perverse outcome of the Scottish Parliament being bound to apply EU law when Westminster was not. Removing those obligations – which only Westminster can do – would simply tidy up the Scotland Act 1998, to Holyrood’s advantage.
On this basis, it would be hard to avoid concluding that devolved legislative consent for Brexit is not needed, at least so far as Scotland is concerned. (The technicalities of consent are different for Wales, but the same conclusion would appear to be the case there. The position for Northern Ireland is much more complicated because of the provisions of the Belfast Agreement and the way that affects the Northern Ireland Act 1998.) However, that was before the England and Wales High Court gave its ruling in the Miller case on the use of prerogative powers to invoke Article 50 of the Treaty on European Union for the UK’s departure. What is important here is not so much the Divisional Court’s ruling that this action required Parliamentary approval, but its reasoning. The key element of the court’s argument was that, as the Article 50 notice would be irrevocable, it would start a process of leaving the EU that could not be stopped, and the effect of that process would be to remove various rights arising from EU membership. Those are not simply the rights linked to EU citizenship, but appear to be considerably broader. The UK Parliament alone could agree to the removal of such rights, applying long-established principles and rules of British constitutional law.
There are reasons why lawyers disagree with the Divisional Court’s ruling (such as Professor Adam Tomkins MSP here), though most agree with it (see, for example, posts on the UK Constitutional Law Association’s blog here). In any event, the Supreme Court may not agree with the Divisional Court. But the reasoning about the connection between EU membership and individual rights changes the position regarding legislative consent for Scotland considerably. That applies even if the Supreme Court were to reach a similar conclusion by a different route, without over-ruling the Divisional Court on this issue. For Scotland at least, ‘rights’ including human rights are not a reserved matter. The Human Rights Act 1998, and the Convention rights it enacts, are provisions protected from alteration by the Scottish Parliament, but rights more widely are not. If Westminster were to interfere with such rights, that does affect a matter within the competence of the Scottish Parliament – which is the test for deciding whether legislative consent is needed under the policy arm of the Sewel convention. As it affects a devolved matter, it is statutory and that also means it is justiciable by the UK Supreme Court. Moreover, as this is a constitutional provision so far as the UK is concerned, the requirement needs to be satisfied for the Article 50 notice to be valid (since that must comply with the notice-giving member state’s ‘own constitutional requirements’).
The Supreme Court needs to address this question, as if it is left hanging it will only lead to further legal uncertainty (and litigation, and delay) in the process of Brexit, or yet more political grandstanding with little legal or constitutional foundation. Only if leaving the EU were not to affect ‘rights’ could the requirement for legislative consent be dispensed with. It is yet more evidence, if evidence were needed, that the path to the UK leaving the EU is a long, complex, twisting and messy one.
UPDATE: It is worth noting that this post was written before the UK Supreme Court ruled in the Miller case. While its 8-3 majority judgment upheld the need for the UK Parliament to give its consent to the issuing of an Article 50 notice (done by the European Union (Notification of Withdrawal) Act 2017), it approached the issue in a different way. In essence, rather than taking the novel ‘rights-based’ approach that the Divisional Court had, it looked at the question in a more traditional way rooted in the doctrine of the separation of powers.
This has significant impact for the need for devolved legislative consent. The question of rights brought (at least to my mind) the bill within the scope of the Sewel convention. The different approach taken by the Supreme Court means it did not. On that basis, not only was it right for the UK Parliament to proceed to pass the Article 50 bill without devolved legislative consent, but there was no constitutional foundation for the Scottish Parliament to debate a legislative consent memorandum on the bill (and withhold its consent).
The question of whether further bills related to Brexit might need legislative consent is, however, still an open one. We have not yet seen any of those bills, of course. The ‘great repeal bill’ to transpose EU law and obligations into domestic law would appear unlikely to in principle. Other bills may well have sufficient effect on devolved functions as to bring them within the scope of the convention.
The Supreme Court’s judgment provides the most detailed and authoritative legal discussion of the Sewel convention, and is well worth reading on that account. It dismisses the idea that putting the Sewel convention on a statutory footing makes it legally binding, and that it remains a political convention that cannot be enforced by the courts. I respectfully disagree with their view; why was it put into statute if not meant to be binding? I cannot think of any other case of a non-enforceable convention that is in statute. However, as the Supreme Court has taken the view that it is not legally enforceable, that now has to be understood as the law.