THE UK Supreme Court hearing on Article 50 is a deadly serious affair, even if it is often more like a piece of theatre, but on Tuesday the Case of the Century gave us a pantomime villain in the shape of Lord Keen QC – boo! hiss! – who had to make the case for the UK Government as to why the Holyrood Parliament should not have any say on triggering Article 50.
So who could be cast as the hero for Scottish interests in the case? Step forward the highly unlikely figure of the softly-spoken Lord Advocate of Scotland, James Wolffe QC.
A product of Kirkcudbright Academy, Wolffe works mainly behind the scenes as the Scottish Government’s chief law officer, but here he was front and centre and speaking for Scotland as Theresa May’s government prepares to take this country out of the European Union against the will of the Scottish people.
Remember that on Tuesday, Lord Keen argued that the Scottish Parliament had no right even to be consulted about “foreign affairs”. There were many who thought that against such arguments Wolffe had a flimsy case, but others felt he would make powerful points, and he duly did so.
With precision and coolness, the Lord Advocate started in quite disarming fashion, agreeing with the point of UK Government lawyer James Eadie QC that “constitutional issues have to be determined in light of current constitutional circumstances”. Of course he immediately jumped to the Claim of Right Act 1689 and Act of Union 1707 to show that legislative powers were given to Parliament, not the Crown – a lawyerly sleight of hand that had legal cats purring.
Getting into his stride, he then forensically dismantled the government’s case, making it clear from the outset that the Scottish Government was not claiming the right to veto Brexit, but did have the right to be consulted.
He was especially clear and concise on what the Sewel Convention – the “legislative convention” as he called it – means for Brexit. The brief summary of his arguments is that Theresa May and her government have to listen to Scotland’s case even before triggering Article 50. The Lord Advocate’s mastery of his brief shone through in a series of question-and-answer exchanges with the judges, and that is no mean feat when you consider that the number of pages in this entire case run to around 34,000. Wolffe did not have a serious pop at Advocate General Lord Keen of Elie – well, they did used to be part of the same set of advocates at Axiom – but he challenged plenty of Keen’s arguments and more than one judge appeared to accept his views.
Not that Wolffe was given an easy ride by the judges. Like so many experts, he found it difficult to say exactly what the UK Parliament meant by the word "normally" when the Scotland Act was passed with the clause about legislative consent. Still, that will be up to the judges to decide and today the court will resume with Lord Advocate Wolffe continuing to speak for Scotland. He is being listened to, and no-one is dismissing the case’s Scottish element out of hand now.
For that achievement alone he deserves the grateful thanks of a nation.
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