Andrew Tickell: Promise to enshrine the Sewel convention in law turned out to be false

Firstly, if the UK Parliament wants to pass legislation in areas lying within Holyrood’s powers – on health say, education, or family law – MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent from Edinburgh. But there is a snag. In the orthodox UK constitutional tradition, Westminster remains sovereign and has the power to make and unmake any law whatever.

At least in principle, Holyrood could be abolished with a strike of the legislator’s pen in London, its jurisdiction unilaterally curtailed and laws repealed. The Scottish Parliament’s prerogatives are unentrenched, always potentially vulnerable.

In the wake of the 2014 independence referendum, the Smith Commission decided that something must be done to shore up Holyrood’s position. “The Scottish Parliament will be made permanent in UK legislation,” their report concluded, and the Sewel Convention must be “put on a statutory footing”. These commitments were reflected in sections one and two of the 2016 Scotland Act.

But did these “constitutional protections” make any practical difference? Did either clause have any legal teeth? In the political domain, David Mundell and his colleagues made much of these concessions, but for legal experts the provisions always had the distinctive whiff of weasel words which left the core principle – of UK parliamentary supremacy – untouched.

Well, after yesterday’s Supreme Court judgment, everybody kens noo.

The Lord Advocate argued that: “Withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention.”

If the protections written into the Scotland Act were to mean anything, he said, Holyrood’s consent must be sought.

The UK Supreme Court shrugged off this argument yesterday. As startling as this proposition may seem, the court held that “the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts”.

And critically, this conclusion was driven by the language the Secretary of State wrote into the statute. The justices concluded: “We would have expected Westminster to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts.”

When it comes to the privileges of the Scottish Parliament, judges “Are neither the parents nor the guardians of political conventions; they are merely observers,” as Theresa May’s lawyer put it starkly at an earlier hearing. Whether Holyrood is heeded or ignored is not a matter of law or right, but “quintessentially a political judgment for Westminster”.

Unhappy with that? The court is clear: any grievances must be “determined within the political world” rather than the courtroom. There’s no avoiding the conclusion: these are no safeguards at all.

TO paraphrase Tam Dalyell, since June 24, 2016 it has sometimes felt as if the United Kingdom has been on a motorway to the hardest of hard Brexits, with no U-turns and no exits. Theresa May’s Black Watch tartan speech last week only confirmed your worst suspicions and fears.

History will look back on the autumn and winter of 2016 as a period of unprecedented political failure. In the wake of the vote to leave the European Union last summer, there was a narrow window of opportunity for Remain-minded politicians and more moderate Brexiteers from across the political parties to unite and organise for a saner, softer Brexit.

To its credit, the Scottish Government attempted to play a positive role in this process – but the initiative has gone miserably unseized. Labour continues to flail helplessly north and south of the Border. The Liberal Democrats continue to privilege a frolic of their own, demanding a second poll. Uneasy Tories are either keeping their mouths shut or cheering themselves up with a bit of futile grousing from the back benches.

The silence has been filled by the swelling anthems of Rule Britannia and nostalgic dreams of yesterday from the ascendant Eurosceptic right, wrapping itself in the red, white and blue.

Yesterday’s Supreme Court judgment offers the ailing coalition for a saner Brexit a very last-minute reprieve. We’re now in the last chance saloon. The Miller case was never about whether Brexit could happen – but how it could happen. Mrs May maintained that Parliament need not be involved at all: the royal prerogative could be used to pull the Article 50 trigger in Her Majesty’s name. Not so said the court.

The Lord Advocate intervened in the case on behalf of the Scottish Government. Weighing in behind the High Court, James Wolffe QC argued that fundamental principles of Scottish constitutional law meant that the executive cannot use the prerogative to strip away rights which Parliament has created.

If Britain is to crash out of the EU, cutting our ties and obliterating the citizenship rights of millions of British people to live, work and study in the European Union, it must be MPs, not ministers, who do the deed. Yesterday’s verdict vindicates that argument.

Now the Prime Minister must table her Brexit Bill – a Bill which, critically, is susceptible to amendment. Theresa May has already lost control over the Brexit process. The Lords are certain to cut up rough. SNP sources confirm MPs have up to 50 different amendments in mind. We can expect these to be vigorously resisted by No 10 and its allies in the media. The hope may be forlorn, nothing useful may come of it, but it is worth one final, desperate shot.