THE question as to whether the future of the United Kingdom lies inside or outside of the European Union may well turn on the definition of the word “normally”, as Scotland’s vote to Remain in the EU looks set to cause chaos for the UK Government.
Lawyers have been examining the case due to come before the Supreme Court in London on Monday to decide if the UK Government has the right to use the royal prerogative to trigger Article 50 which will mean Brexit – hard or soft. The Scotland Act 2016, section 28 (8), states: “It is recognised that the Parliament of the United Kingdom will not normally (our italics) legislate with regard to devolved matters without the consent of the Scottish Parliament”.
The National understands that Lord Advocate James Wolffe QC will argue strongly on behalf of the Scottish Government that “normally” the removal of European Union laws from Scotland’s laws would require the consent of the Holyrood Parliament, where only the Conservatives are guaranteed to vote for Brexit.
His argument holds dangers for Prime Minister Theresa May and her Government, for if any question of EU law is raised at the Supreme Court then its 11 judges are duty bound to refer the matter to the European Court of Justice which will take weeks or even months to decide the issue. It currently takes 16 months on most cases, but would probably fast-track the Brexit consideration.
The prospect of May meeting her March 31 deadline for Article 50 would rapidly recede, but she risks a major constitutional crisis, and an almost certain indyref 2, even if she pushes laws through the Westminster Parliament to trigger Article 50. One of Scotland’s top constitutional lawyers, Fiona Killen of Anderson Strathern, explained in a briefing note: “Both the Scotland Act 1998 (s28 (8)) and the preceding convention contain the word ‘normally’ in relation to circumstances in which the consent of the Scottish Parliament would be sought.” It is the definition of “normally” which is exercising legal minds but if the Scottish Government wins the argument and the Supreme Court orders that Holyrood’s consent is needed, the May Government could still impose Brexit on Scotland, with untold consequences for the Union.
Fiona Killen explained: “As ref- lected in section 28 (7) of the Scotland Act 1998, the devolution of power to Scotland was not an absolute transfer of power, but rather a sharing of power, with the UK Parliament retaining the absolute power to legislate in devolved areas.
“Section 28 (8) remains subject to section 28 (7) which states that “this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”. This one sub-section in the Scotland Act reflects the essence of devolution of power to Scotland.” Gina Miller, the businesswoman who successfully argued before the High Court of England and Wales that Prime Minister Theresa May must seek Parliamentary approval for Article 50, had her lawyers, Mishcon de Reya, publish a summary of her case yesterday.
It is very strongly worded and leaves no doubt that she will accuse the May Government of acting unlawfully. The submission states: “The notific- ation of Article 50 given by royal prerogative would destroy or frustrate rights established by the European Communities Act 1972. Only Parliament itself could defeat the statutory rights which Parliament itself has created.”
The submission added: “The court has the power and the duty to decide the questions of law, irrespective of whether the judgment finds favour with politicians and the press. The independence of the judiciary and the rule of law are basic principles of our constitution.
“The appellant (the UK Government) fails to recognise the exceptional nature of the 1972 Act in incorporating into domestic law a body of rights which are part of an international legal system, and the consequences this has for the operation of the dualist principle.
“The appellant fails to recognise a series of fundamental principles of domestic law: i) the principle of Parliamentary sovereignty; ii) the principle that even a statutory power to later primary legislation will be narrowly construed; iii) the principle of legality and iv) the constitutional status of the 1972 Act.”
The submission argues the rights to be removed by Article 50 include “the right to rely on directly effective EU law rights in the English courts to interpret or override other legislation enacted by Parliament (eg equal pay without sex discrimination)”.
It adds: “The act of notification under Article 50 commits the UK to leaving the EU with the consequence that statutory rights currently enjoyed will be defeated or frustrated.”
The UK Government states: “Under the UK’s constitution, it is for the Government to exercise prerogative powers to conduct the UK’s affairs on the international plane.”
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