Here's why Westminster has no authority for the power grab

We are now in constitutional territory with the Continuity Bill, which Westminster would like to have struck down by the United Kingdom Supreme Court as being ultra vires. Basically, that means that Holyrood is, in Westminster’s eyes, not competent to either draw up or pass this legislation which would see repatriated devolved powers, returning from the EU, go straight back to Scotland instead of allowing Westminster to appropriate them in order to create new and uniform frameworks for the UK internal market. The Scottish Government (the Lord Advocate’s opinion) is that the Continuity Bill is competent because it would not be enacted before the powers are returned, treading on no-one's constitutional toes or authority, and the Scottish Government and Westminster would be able to negotiate on the form the frameworks, created from the powers, would take in order to protect Scottish interests.

The reason the UK Government claims that Holyrood does not have competency in this area is because it (Holyrood) is being precipitate in using legislation to usurp EU legislation and competency before we are actually out of the EU. The Continuity Bill is a construct designed to pre-empt Westminster’s "power grab", but, claims Westminster, it is presumptuous and precipitate, and crucially for its argument, incompetent while the powers remain with the EU. The UK is the member state, not Scotland, and the Westminster government argues that, when the powers are returned, only it has the authority to receive them and redistribute them. However, the Westminster government has already admitted that the powers are devolved powers.

The latest offer involves "borrowing" them for seven years (Wales has already capitulated, although Westminster prefers "agreed"), without any guarantee that they will be returned after the seven years are up or what will have been done to them in the meantime, without Holyrood’s co-operation, and, crucially, with no guarantee, having set this precedent of borrowing devolved powers, that future predation of devolved areas will not take place.

The Supreme Court has already ruled that a Sewel Motion (legislative consent convention) is just that, a convention, and that the Scottish Government cannot make use of it to withhold consent because Westminster parliamentary sovereignty means that, legally, it is the superior legislature from which the three devolved and inferior or subordinate legislatures draw their legitimacy and authority. The Scottish Government can act only in the political field, therefore, and not the legal one (albeit that is de facto impossible because of the sheer number of English MPs at Westminster who routinely outvote the Scottish MPs and their allies in parliament. That other little word contained in the 1998 Scotland Act, "normally", as in the Westminster government would not normally interfere in devolved issues, means that the Westminster government would argue that Brexit is not a normal situation, and, of course, strictly speaking, it is not.

The Scottish Government under Nicola Sturgeon had already asked for a second Edinburgh Agreement Section 30 Order to stage another independence referendum, having won a mandate from Holyrood to do so, but Mrs May has declined to comply, stating only that “now is not the time”. We must assume, therefore, that the time either will never come or it will be after we have Brexited, which, of course, would be as much use as the proverbial chocolate fireguard, in front of which the Tory anti-baby box zealots appear to believe brainless parents would leave their infants.

The stark truth is that after we have Brexited, people will very probably be diverted from even thinking about independence, and the SNP might well be voted out of power in Scotland. I am not saying it will happen, but it could very well happen if only because the status quo will be fought for even harder next time, and the SNP government will be attacked as never before, with the sole purpose of getting them out of Holyrood. The mandate will also become time-barred, unless renewed.

By all means, the Scottish Government should defend its Continuity Bill in the UK Supreme Court, on the grounds of competency, but it should also have a second line of defence: the Treaties and Acts of Union. I may well be completely wrong here, but I believe that Westminster has no authority to exert its will on Scotland in this arbitrary way. The Act of Union (which translated the Treaty into domestic legislation) states, quite specifically, that both parliaments and kingdoms (already united) would become one under the auspices of the new British parliament, the parliament of the United Kingdom of Great Britain (which incorporated Wales with England, but not yet Ireland).

What we had, therefore, were two sovereign, independent nation states agreeing to a Union, and the terms go on to show that Scotland was not subsumed into a Greater England, Crawford and Boyle’s Report notwithstanding (and the main reason that David Cameron never used it in 2014; we would have won if he had). Indeed, from 1707 to now, all enacted legislation and the fact that Scotland retained her legal system, education system and state religion all conspire to prove that Scotland was intended to be a partner in the Union, not a colony or a satellite.

Essentially, the UK (or England) has been complicit in recognising Scotland’s partnership status through its own actions. Where the Scottish jurists went badly wrong was in not opposing London as the site of the new British parliament because the English ruling elite and, it would appear, most of the English population seem to believe that the English parliament continued, and that its overriding constitutional principle of sovereignty of parliament, married to the Royal Prerogative, also continued in all circumstances.

Sovereignty of parliament, established after the English Civil War, is, indeed, the foremost constitutional principle of the UK constitution (Dicey) and the UK Supreme Court has already recognised that, too, but it has no place in Scottish constitutional law (Lord Cooper). That aside, the real challenge to that principle comes from the Treaty and Act of Union (and from the Claim of Right of 1689). They are the founding authority of the new British parliament (remember, new, and no other interpretation is possible, such as the continuation of the English parliament in parallel with the British parliament, or why EVEL in 2014?) The British parliament must draw its own legitimacy from those international treaty documents, which are still in force, never having been quashed. No parliament or government has the authority to quash them, albeit many of the terms have been broken or have fallen into desuetude, but not the main three Scottish state institutions mentioned above – as yet – but they, too are under threat from a new British Bill of Rights which would reflect wholly/mainly English constitutional origins, eg Magna Carta). The very real threat that we are facing now is the ultimate destruction of Scotland as a nation.

The Treaties and Acts of Union, being the UK’s foundations, cannot be overridden by that sovereignty of parliament because the Westminster parliament itself (as the British parliament) draws its own legitimacy and authority from those founding documents. Westminster cannot draw authority from itself. Sovereignty of parliament (originally English) must give way to the Union, which is the very foundation of the original British state, and means that it is Westminster that is acting ultra vires. As I say, I could be very wrong, but, if nothing else, it would force the UK Supreme Court to look at the Treaty and Act and give us all a ruling, which might just make all the difference to the independence debate itself, and, certainly, the confederal (not federal) proposition. It is way past the time for that ruling.