Contrary to the arguments made over recent days, it has no legal right to. But devolved nations are not powerless altogether in the Brexit process—and the government will do well to remember thatby Sionaidh Douglas-Scott / June 28, 2017 / Leave a comment
Can Scotland block Brexit? From the excitement issuing from some commentators, you’d be forgiven for thinking it could. Certainly, the UK government appears to have acknowledged that legislative consent will be required from the Scottish Parliament—not to mention the Welsh Parliament, and Stormont—to successfully complete its program to translate EU law into national law, via a series of Bills including the “Repeal Bill” (demoted from its former grandiose title of the “Great Repeal Bill”).
But to suggest this could spell the end of Brexit is overdramatic—and inaccurate. Not only does it misunderstand the UK’s devolution settlement, but there’s a hint of antagonism, too: pitting one nation against another.
Scotland has no legal right as such, to block Brexit. However, devolved nations are not powerless in the Brexit process, and a closer look at their constitutional powers illustrates that they must not be ignored.
To understand this more nuanced truth, it is worth reflecting on the details of our devolution settlement. Britain is not a federal state, with a written Constitution giving component nations legally enforceable protections, or even vetoes, against constitutional changes such as Brexit (as is the case in the USA or Germany, for example). What we have is devolution, a much more delicate and frangible settlement—a mixture of law and constitutional convention.
One of these conventions is particularly significant when it comes to Brexit. When the Devolution settlement was established in 1998, what became known as the “Sewel Convention” came into operation. This was named after John Sewel, then Minister of State at the Scotland Office, who stated that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.”
Some in the English press have dismissed this convention as an “obscure legal mechanism.” Yet the Sewel Convention is in fact a major part of the UK’s territorial constitution. And for a while, it seemed to work well enough. Since its introduction, there have been quite a few occasions in which the Scottish parliament has given its legislative consent.
However, the Scottish Parliament might not be happy to do so in the context of Brexit. Via the above-mentioned “Repeal Bill,” Westminster plans to follow…