And now for the constitutional expert

Lord Keen QC, the Scottish advocate general, put forward an extraordinary argument to the Article 50 hearing before the Supreme Court this morning, He claimed that no legislative consent motion on Brexit is needed from Scotland, Wales, Northern Ireland because no legislation is needed to trigger Brexit. To put it another way, he argued that our membership of the EU is maintained at the whim of the Prime Minister.

Interesting, no?

So, which level of UK government has the right and ability to sign treaties with foreign powers? That would be Westminster, wouldn’t it? On the same grounds that it is currently the EU which has the power to determine external trade tariffs, say.

So, err, why do the subsidiary administrations, which do not have the power to make foreign treaties, need to approve a foreign treaty?

40 thoughts on “And now for the constitutional expert”

  1. Until and unless we have a Belgian-style federation where the federal subjects have veto power over treaties, then no, the UK Parliament Is Supreme.

  2. “The Lord Advocate’s submission is that … withdrawal from the EU would: (i) change the competence of the Scottish Parliament and the Scottish Government; and (ii) change the law within devolved competence.”

    The Scottish Government isn’t saying it has or should have the power to approve or withdraw from international treaties. It’s saying withdrawal from the EU would have an effect on Scotland such that current constitutional arrangements require consent to be sought from the Scottish Parliament.

  3. I’m currently watching it live. It’s fascinating.

    “My Lord, where I refered to schedule 107.9 that should refer to schedule 103.9, as refered to in paragraph 77 in the explanatory notes…”

  4. “So, err, why do the subsidiary administrations, which do not have the power to make foreign treaties, need to approve a foreign treaty?”

    Isn’t that claim based on the idea of Legislative Consent Motion?

    I.e, if a power has been devolved to a regional assembly/parliament and the national Government then wants to pass a law that impacts on that power, then it needs the consent of the assembly/parliament to pass that law.

    The claim being that some devolved powers are impacted by European law, so withdrawing from that European law impacts on a devolved competency, and so it subject to a Legislative Consent Motion ( “Sewell Convention” )

  5. The Inimitable Steve

    This isn’t an extraordinary argument at all. Prior to the referendum, nobody suggested we needed some sort of constitutionally contortionistic legal limbo dance for the Prime Minister to trigger Art 50.

    Dave promised he’d do it immediately, to zero outrage or criticism. It’s an executive decision and the PM heads the executive branch of government.

    Sure, we need Parliament to repeal the 1972 Act, and that’s important, but that comes near the end of the process: the finish line, not the starting pistol.

    Only after Remain lost did we suddenly learn that ACKSHUALLY, BIGOTS, THE BRITISH CONSTITUTION FORBIDS THE GOVERNMENT TO DO WHAT VOTERS WANT!!!!1!

  6. “The claim being that some devolved powers are impacted by European law, so withdrawing from that European law impacts on a devolved competency, and so it subject to a Legislative Consent Motion ”

    This sounds like the New Deal justifications in the US – a farmer growing grain to feed his own chickens impacts interstate commerce because he could have bought that grain across state lines instead.

    Since everything impacts everything to some degree, should Scotland have a veto on everything?

    And since EU law is already enshrined in UK law, what is the immediate impact to Scotland on withdrawal?

  7. The Inimitable Steve

    What legal standing does that have?

    Zackly. The reason we didn’t hear about muh legal standing before the referendum is because it’s bollocks. Tiny, berry-sized leftybollocks.

    Hang the lolyers. Mr Ecks for Lord Protector.

  8. Prior to the referendum, nobody suggested we needed some sort of constitutionally contortionistic legal limbo dance for the Prime Minister to trigger Art 50.

    Perhaps they should have. But in principle it’s not “contortionistic” in the slightest – the question is “Does the Government have power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union, without an Act of Parliament providing prior authorisation to do so?”

    EIther it does or it doesn’t – that is what they are arguing about. Parliament can decide the argument by providing the Government with the authorisation.

    Perhaps Parliament should have done so before the referendum, in the legislation setting up the referendum. But it didn’t, so here we are.

  9. Why doesn’t Scotland unify with Ireland? They get to stay in the EU without having to meet the fiscal requirements all by themselves, we get them off our back, everyone’s happy.

    Throw in Wales and Northern Ireland as well, call the new place Celtonia, and rustle up a flag, job done.

  10. The Inimitable Steve

    EIther it does or it doesn’t – that is what they are arguing about.

    Other worthwhile uses of our time and money:

    * How many Camilla Batmanghelidjhis would it take to devour the planet Neptune?

    * A longditudinal analysis of the relative impacts of African and European swallows on climate change.

    * A census of snowmen.

    It’s just legal obstructionism and nothing more. There’s no issue of principle at stake here.

  11. “The claim being that some devolved powers are impacted by European law, so withdrawing from that European law impacts on a devolved competency, and so it subject to a Legislative Consent Motion ( “Sewell Convention” )”

    That sounds very reasonable indeed. It is a little surprising though to hear that Powers devolved from the UK Parliament will be impacted by withdrawal from the EU. Perhaps you could set out which these are are how.

  12. This idea of EU Law is interesting. I know of European Directives being enshrined into domestic law. I know of ECJ rulings leading to domestic law changes so that Domestic Law confor ms to the ruling. The Scots can’t mean this can they?

  13. The Inimitable Steve

    The Scots can’t mean this can they?

    Dunno what risible arguments they’re using this week, but it doesn’t matter. They don’t “mean” anything other than the Fraggle Rock escapees up at Holyrood hooting and flinging poo at the inevitable.

    The constitutional position of the Scottish parliament, as an entity which exists entirely on the basis of Westminster statute, is you’ll get nothing, and like it!

  14. There’s no issue of principle at stake here.

    The principles are Parliamentary Sovereignty and the constraints on the use of the prerogative powers. Our constitution says the Crown can’t use prerogative powers to change domestic law. It is Parliament that makes or unmakes domestic law. Parliament can make law to help the Government implement the result of the referendum.

  15. The Inimitable Steve

    Our constitution says the Crown can’t use prerogative powers to change domestic law.

    Notifying the EC of our intent to withdraw under Art 50 doesn’t change any laws. Only an amendment or repeal of the 1972 Act (or any other statute) would do that.

    So, this argument to the contrary is pish. It’s grubby yellow y-fronts. It’s ninnywittery. It’s bumfoolery. It’s Nicola Sturgeon’s tartan moustache. It’s the crazy world of Nick Clegg.

    Everybody involved should be rounded up and killed by a fluther of box jellyfish. After a relevant act of parliament to authorise damnatio ad jelly.

  16. ukliberty

    I’m sorry I’m on a train at the moment and connections are difficult. But then I’m somehow not surprised by that. Why don’t you have a go at explaining it by yourself in your own words.

    You have said it is all very serious and important etc, but I haven’t seen anything yet to suggest it has any basis in law at all. So I eagerly await your instruction.

  17. “That sounds very reasonable indeed. It is a little surprising though to hear that Powers devolved from the UK Parliament will be impacted by withdrawal from the EU. Perhaps you could set out which these are are how.”

    Quite. Foreign relations are exclusively Westminster’s perogative.

    This is like Pennsylvania insisting on having a veto about the US withdrawing from NAFTA.

  18. Notifying the EC of our intent to withdraw under Art 50 doesn’t change any laws.

    It’s common ground – i.e. the Government agrees – that giving notice will result in changes to domestic law without the requirement of primary legislation.

  19. Ironman, I’m not familiar with the detail of the Scottish Government’s case – I provided the link to its submission to the Supreme Court because you seemed so very interested in it. I’m sure you can wait until you get a reasonable internet connection.

  20. You’re not familiar with it. OK.

    We’ll coincidentally, since our last exchamge I happen to have perusing g some of today’s hearings. It seems the Scottish case – o; the SNP case – is based upon our prime minister’s MORAL rather then legal obligations to Scotland.

    Sounds like pish to me.

  21. Bloke in North Dorset

    Looks like time for another UK wide referendum:

    “Should Scotland remain part of the UK or leave?” .

  22. Did Parliament have a vote before Tony Blair agreed to give up part of the UK’s rebate, and pay more into the EU pot? Or did he do that off his own bat so to speak? And does all the ‘Parliament must be sovereign’ bollocks doing the rounds currently apply only to more EU interference in the UK’s affairs, but not less?

  23. “That sounds very reasonable indeed. It is a little surprising though to hear that Powers devolved from the UK Parliament will be impacted by withdrawal from the EU. Perhaps you could set out which these are are how.”

    Ironman, I was giving the basis for the claim Scotland can block Brexit. Not offering a view on it.

    But, since doing your own research appears beyond you, the “impact” is that essentially Scotland won’t be, or may not be, bound by legislation originating from the EU any more, which is a change to the powers of the Scottish Parliament ( an expansion of powers, rather than a limitation, but still… ).

    This means devolved powers will be affected by an action of the UK Government, hence the claim under the Sewell Convention.

    You or I may not agree with this contention, but there it is.

  24. “And does all the ‘Parliament must be sovereign’ bollocks doing the rounds currently apply only to more EU interference in the UK’s affairs, but not less?”

    Both. I am perfectly happy for Parliament to pass laws restricting our freedoms just as much as I am perfectly happy for Parliament to pass laws widening our freedoms, Parliament is sovereign and in our constitution nobody can overrule that. Not even Parliament itself. Anything Parliament does can be reversed by a future Parliament as Parliament cannot bind itself as Parliament is sovereign.

  25. I’d like to replace the CAP by bunging Local Authorities a £100/hectare environmental subsidy to spend as loosely as they see fit. I’d like to see Local Authorities control fishing rights if they have a port, and also set the minimum wage.
    So the logic from the advocates is that additional powers cannot be devolved without first getting the consent of the people being given those additional powers? I suppose they have a point – but do they want to revisit the cases where a few of the British colonies were given independence without bothering to formally enquire if they actually wanted it.

  26. As an unreformed BRExitier who spent hundreds of hours leafleting and street campaigning for Leave.EU on the streets of Perth, Scotland I can state categorically that the Scots in the form of the Scottish Parliament should absolutely have a say in what happens with regard to BRExit.

    The reason I say this is that BRExit will impact pretty much the entirety of the UK political landscape for the next generation and there will be consequential impacts at every level of government, including the devolved assemblies and local authorities.

    It would be unreasonable for the UK Government to turn a deaf ear to genuine concerns and make transitional arrangements, etc., to address them.

    However, to use an analogy, when I take the kids on holiday they can choose to sit on the window seat or the aisle seat and I don’t really care, but nothing they say will change the destination, because as the parent, that has already been decided and the money for flights and hotels paid for out of the parental bank account.

    So the SNP can bitch and moan all they like, but we’re already at the airport gate and we’re leaving the EU whether they like it or not.

    Their choice is to suck it up and try to benefit from the experience or be a spoilt brat and feel the back of my parental hand.

  27. John Galt

    As I read you, you have drawn a distinction between having your say and being a part of the decision-making process. I wholly agree with you.

  28. As I read you, you have drawn a distinction between having your say and being a part of the decision-making process. I wholly agree with you.

    Kind of. They have a right to an opinion on matters affecting them, but they don’t have the right to completely overrule and undermine either the decision of the majority (i.e. the referendum) or interfere in the execution of the decision by the PM / Cabinet.

    For example, leaving the EU will result in massive changes affecting farmers for instance as they will not receive CAP payments from the Rural Payments Agents (is my limited understanding of the issue), so there will be a number of options available from instituting our own UK specific version of the CAP (ugh!) to dismantling the entire regime of farm subsidies entirely (yay!), the Scottish Parliament could say “We would like to operate our own RPA out of our own budget”, whilst the Parliament in Westminster might disband the RPA in England, Wales and Northern Ireland.

    I think that all of this is fine, just variations on how to deal with BRExit, which was always going to be challenging as we are unwinding a 40-year relationship with the EU and it’s predecessor the EEC.

    What is not acceptable is the petulant behaviour of the SNP and particularly First Minister Nicola Sturgeon in attempting to undermine and frustrate BRExit.

    If they had declared independence in 2014 then they could have done whatever they liked, but they didn’t. They are part of the United Kingdom and both Nicola Sturgeon and the SNP should either engage constructively in the process or resign.

  29. Doesn’t Scotland have a bunch of seats at Westminster? Surely that’s the place for their representation in any decision making regarding brexit?
    If the Scottish and other devolved parliaments have some kind of veto over the process, why doesn’t England have the same powers?

  30. @David:

    Pretty much and given that the entirity of the SNP voted against BRExit in the parliamentary debate yesterday I would say that they’ve made their position quite clear, but lost the argument by 461 to 89 (a majority of 372 being in favour of BRExit).

    Good. So now we have a clear decision from the sovereign Parliament of the United Kingdom, in which the Scots are quite frankly over-represented, to get on with BRExit.

    Theresa May has said she wishes to do the necessary preparation to deliver Article 50 in March 2017. She is the one that has to deliver on that, not me.

    It’s not ideal, but I can live with March 2017 as a starting point on the road to freedom from EU tyranny.

  31. By the end of this week the Supreme Court will have the arguments from both sides. In January it will publish its decision. There are two possible decisions:

    A. the Government does have the power to notify under Article 50 without a further Act of Parliament; or

    B. the Government does not have the power to notify under Article 50 without a further Act of Parliament.

    If B, it is open to Parliament to use primary legislation to grant the Government the necessary power. The results last night seem to indicate that the vast majority in the Commons are in favour of implementing the result of the referendum, whatever their personal opinions.

    It must be frustrating if you believe that all we have to do is send the EU a letter saying we’re off.

  32. If the Scottish and other devolved parliaments have some kind of veto over the process, why doesn’t England have the same powers?

    The answer is in the question.

  33. abacab,

    The problem with that analogy is I highly doubt Pennsylvania would want to veto leaving NAFTA. Pittsburgh’s economy is based on being the major regional hub serving Western PA, Northern WV, and Eastern as well as Southern OH, sorry Cleveland and Cincinnati, you’re just not that important. We’re currently preoccupied with whether the Stillers can pass the Dirty Birds for the division title. That leaves Philly and the, mostly jobless, Pennsylvania T. I see no reason the NAFTAway wouldn’t be welcomed at the state level.

    Unfortunately I am struggling to come up with a good comparable known for a sizable Scottish population. If that isn’t a requirement Delaware is probably the best bet. The two aren’t far off in some regards either. For example both are normally considered insignificant backwaters.

    BiND,

    Who would willingly let Scotland join so they can stay in the EU?

    Sorry to interrupt an otherwise intelligent conversation but I am 7/64ths Scot. Apparently it’s what we do.

  34. Bloke in North Dorset

    John Galt,

    ““We would like to operate our own RPA out of our own budget”, whilst the Parliament in Westminster might disband the RPA in England, Wales and Northern Ireland.

    I think that all of this is fine, just variations on how to deal with BRExit, which was always going to be challenging as we are unwinding a 40-year relationship with the EU and it’s predecessor the EEC.”

    So its a bun fight over money saved once we leave? I’ll bet they soon start claiming its £350m per week and they want their share based on Barnett.

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