This has been a very busy week for Brexit, even in these days when Brexit always dominates current affairs. This week’s shower has included a judgment from the European Court of Justice that Article 50 (which triggered the Brexit process) may be unilaterally revoked; the prime minister’s deferral (or abandonment?) of the parliamentary “meaningful vote” on her Withdrawal Agreement; her subsequent dash to European capitals in an unsuccessful attempt to alter that Agreement’s terms; closely followed by an unsuccessful attempt by some Tory MPs to depose her as leader.
In all of this excitement, some may have missed another highly important court judgment on a very significant aspect of Brexit. This was the judgment delivered this Thursday by the UK Supreme Court on the legality of the Scottish Continuity Bill adopted by the Scottish parliament back in March, and its compatibility with the UK EU Withdrawal Act (EUWA) which became law in June 2018. The UK government’s approach to Brexit has not found favour with the Scottish government, which considers that the needs of a Scotland which voted 62 per cent Remain have been ignored in the process. Hence, the Scottish parliament adopted its own approach in its Continuity Bill, some of which the Supreme Court has now found to be beyond the competence of the Scottish parliament, and therefore unable to come into effect.
But just why is this important? Whereas we are all familiar with the significance of Northern Ireland in Brexit matters—and the difficulty of squaring the circle of the UK leaving the EU without imposing a hard border through the island of Ireland, hence the problem of the “backstop”—the Scottish perspective has received much less attention in UK commentary. And yet, “this precious union,” to which Theresa May referred, consists of four nations, each with their own needs, and any Brexit settlement which ignores the position of one of those nations risks destabilising that union.
Devolution to Scotland, Wales and Northern Ireland has taken place within the scope of EU membership. To an extent perhaps not appreciated, the EU has provided overarching legal and governance frameworks for areas such as agriculture and fisheries, which are devolved matters. Holyrood, while being responsible for devolved matters under the…