Following Nicola Sturgeon’s appearance on the Sunday Politics Scotland programme yesterday the BBC and several newspapers, including the Guardian, the Daily Mail, the Independent and the Telegraph, have reported that the Scottish Parliament could veto or block the UK’s exit from the European Union. However is this correct? In short: no.
It is a well established constitutional convention, known as the Sewel Convention, that the UK Government will not normally legislate on devolved matters except with the agreement of the devolved legislature (see paragraph 14 of the Memorandum of Understanding between the UK Government and devolved executives (October 2013)). This convention is now reflected in section 28(8) of the Scotland Act 1998, as inserted by section 2 of the Scotland Act 2016. Since its inception in 1998, the convention has evolved to require consent “not only where the UK Parliament seeks to legislate in devolved policy areas, but beyond that where a UK bill seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.” (Chris McCorkindale, Scottish Constitutional Futures Forum). This expansion of the convention has been recognised in practice and is reflected in Rule 9B.1 of the Standing Orders of the Scottish Parliament.
However, would Brexit trigger the Sewel Convention, requiring a legislative consent motion to be passed by the Scottish Parliament before the Westminster Parliament could proceed? A legislative consent motion would only be required if withdrawal from the EU can be seen as a devolved matter or varies the legislative competence of the Scottish Parliament or Government. It is clear from paragraph 7 of Schedule 5 to the Scotland Act 1998 that international relations, including relations with the EU, are a reserved matter. What is more complicated is whether Brexit would vary the competence of the Scottish Parliament and Government.
Section 29(2)(d) of the Scotland Act 1998 states that a provision of an Act of the Scottish Parliament is not law in so far as it is incompatible with EU law. There is also a restriction in paragraph 1 of Schedule 4 of the Act to prevent modification of certain provisions of the European Communities Act 1972. Similarly, section 57(2) of the Act states that a member of the Scottish Government has no power to act in a way that is incompatible with EU law. These provision have led many (including Sir David Edward, former judge of the Court of Justice of the European Union, in his evidence to the House of Lords Select Committee on the European Union: see answer to Question 17 here) to suggest that withdrawing from the European Union and repealing the European Communities Act 1972 would require the consent of the Scottish Parliament. This is because doing so would amend the Scotland Act 1998 and vary the competence of the Scottish Parliament and Government by removing the requirement to act compatibly with EU law.
This may indeed be the case. However, looking at the practical reality of the process of withdrawing from the EU, it is unclear what purpose refusing legislative consent would actually achieve. The Sewel Convention only applies to legislation passed by the Westminster Parliament. It does not apply to acts of the Westminster Government. Notifying the European Council of the UK’s intention to withdraw from the EU under Article 50 of the Treaty on European Union is an act that will be exercised by the Prime Minister (whoever that may) under the royal prerogative. The Westminster Parliament is not required to pass legislation in order for this to take place. As such, there would be no opportunity for a legislative consent motion until the Westminster Parliament begins the process of amending and repealing domestic legislation which implements EU law. This will only occur after the UK has started the process of withdrawing from the EU. Even then, the UK Government may take the view that the legislation relates to a reserved matter (international relations) and refuse to request legislative consent from the Scottish Parliament, as they did during the passage of the Immigration Act 2016 in response to concerns expressed by Margaret Burgess MSP that the Act encroached on the devolved area of residential tenancies. Given that, in strict legal terms, the Westminster Parliament retains the power to make or unmake any law, there is little that can be done to resolve such a disagreement over whether a legislative consent motion is necessary.
Assuming the UK Government does seek the consent of the Scottish Parliament, the most the Scottish Parliament could do would be to prevent repeal of the European Communities Act 1972 in so far as it relates to devolved matters. This would not prevent the UK’s (or Scotland’s) withdrawal from the EU. All this would achieve would be to continue the current restriction on the Scottish Parliament and Government preventing any legislation or action which is incompatible with EU law. EU law would be applicable in Scotland only as a means of challenging Acts of the Scottish Parliament or actions of the Scottish Government. The broader benefits of EU membership, such as free trade and free movement, would still be lost as Scotland (as part of the UK) would not be a Member State of the EU.
Preserving a restriction on the competence of the Scottish Parliament and Government is a far cry from ‘blocking’ or ‘vetoing’ Brexit. None of the economic, social or cultural disadvantages of leaving the EU would be prevented by preserving the European Communities Act 1972 in relation to devolved matters. In light of this, it is misleading to suggest that the Scottish Parliament can block or veto the UK’s withdrawal from the EU.