THE extent of the Westminster Government’s consternation over Scotland, Wales and Northern Ireland having any say about the triggering of Article 50 has been laid bare in its final written submission to the Supreme Court ahead of next’s week’s historic appeal hearing.
The strongly-worded submission by the Attorney General of England and Wales, Tory MP Jeremy Wright QC, dismisses out of hand any claims that the devolved legislatures can have a say in Article 50 and argues that the Royal Prerogative “power to withdraw from treaties is deliberately unaffected” by devolution.
Joanna Cherry QC MP, the SNP’s justice spokesperson at Westminster said the very language of the submission “shows the extent of the panic within the Government” over next week’s hearing.
She said: “We have had English QC Jo Maugham saying the submission is ‘fantastically rude’ and Scottish QC Jonathan Mitchell calling it ‘tetchy and supercilious,’ so it really does smack of panic.”
The UK Government, according to most legal experts, is facing defeat in the Supreme Court where it is appealing against the decision of the High Court that using the Royal Prerogative to trigger Article 50 without a vote in Parliament is unlawful.
The final written submission by Wright was being seen last night as an attempt to have the devolution issues not even put before the Supreme Court, as that could cause the court’s 11 judges to refer the case to the European Court of Justice.
The Scottish Government’s case after its intervention in the appeal will be put forward by Lord Advocate James Wolffe QC who argued in his written submission to the Supreme Court that Holyrood’s consent is needed for Article 50 as Brexit becomes inevitable and will mean the repeal of the large body of Scots law that now incorporates European law.
The Lord Advocate will rely on the Scotland Act 2016, section 28 (8), which states: “It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
The UK Government case submits “that the devolution legislation cannot add to the arguments against [the Government’s] case in any material way. Nothing in the legislation abrogates the prerogative.
“That there are various provisions in the devolution legislation which envisage the application of EU law is undoubtedly correct but adds nothing to the arguments already addressed in the case. The legislation assumes that the UK is a member of the EU but does not require it to be so and does not become unworkable as a result of the commencement of the process of withdrawal.”
Perhaps the most salient point in Wright’s submission, which was co-authored with Scotland’s Advocate General Lord Keen of Elie, QC, the former Scottish Conservative chairman, is that “there is no dispute that the devolution statutes comprise very significant pieces of legislation. But nothing in the issue of Article 50 notification, or indeed withdrawal from the EU altogether, alters the existence of the devolved legislatures or the essential structure and architecture of the devolution settlements.”
Couched in sometimes arrogant and patronising terms, the language of the Wright submission has appalled top lawyers with former UK Government law chief Sir Paul Jenkins saying: “I can’t recall a case where the Government thought it wise to descend to such rudeness. Unnecessary and inappropriate.”
Senior Scottish QC Jonathan Mitchell tweeted about the submission’s “tetchy language” and added: “I can’t recall reading any written argument by any senior counsel in any case that was as supercilious and ill-tempered as this one.”
The former Advocate General and Deputy First Minister Lord Wallace yesterday said the Holyrood Parliament could have the right to a so-called ‘legislative consent motion’ over the terms of Brexit.
While stating that he felt the Supreme Court would not give Holyrood a say over Article 50, he said that later in the process “there is clearly a role – for the potential of a legislative consent motion, because many of the things we’re talking about impact on areas of devolved competence; farming, fishing, the environment.”
Why are you making commenting on The National only available to subscribers?
We know there are thousands of National readers who want to debate, argue and go back and forth in the comments section of our stories. We’ve got the most informed readers in Scotland, asking each other the big questions about the future of our country.
Unfortunately, though, these important debates are being spoiled by a vocal minority of trolls who aren’t really interested in the issues, try to derail the conversations, register under fake names, and post vile abuse.
So that’s why we’ve decided to make the ability to comment only available to our paying subscribers. That way, all the trolls who post abuse on our website will have to pay if they want to join the debate – and risk a permanent ban from the account that they subscribe with.
The conversation will go back to what it should be about – people who care passionately about the issues, but disagree constructively on what we should do about them. Let’s get that debate started!
Callum Baird, Editor of The National
Comments: Our rules
We want our comments to be a lively and valuable part of our community - a place where readers can debate and engage with the most important local issues. The ability to comment on our stories is a privilege, not a right, however, and that privilege may be withdrawn if it is abused or misused.
Please report any comments that break our rules.
Read the rules hereLast Updated:
Report this comment Cancel