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 ([2016] 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.