Can Scotland block Brexit?

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 the UK’s withdrawal from the EU by “repatriating” powers. The intention is to translate these powers into UK law to ensure there are no gaps immediately following Brexit—the idea being that the government will then maintain the power to repeal or amend these repatriated laws in future.

The problem, however, is that quite a few of these EU laws relate to areas that are devolved. Agriculture, fisheries, and environment, for example, are all matters which are clearly devolved and within the competence of the Scottish Parliament under the Scotland Act 1998.

The UK government’s view is that even in the case of these devolved matters, the repatriation process will first “return” them to Westminster and decisions will be made as to where they should go from there, ensuring that “stability and certainty is not compromised.” The view of the Scottish Government differs.

Nicola Sturgeon has argued that the UK government is planning a “power grab," and her government has said that devolved policy fields should automatically revert to Scotland unless explicit legislation is adopted to change this.

It is via this argument that Scotland’s main challenge to Brexit is likely to come.

So, what will happen if the Scottish Parliament refuses consent for the Repeal Bill, or other Brexit related legislation—as seems quite likely?

The UK Government might try to ignore this refusal, and proceed with legislation anyway, arguing that Westminster is a sovereign Parliament with the capacity to legislate for the whole UK, and that the Sewel Convention, as a constitutional convention, is a political rather than a legally-binding undertaking.

However, as part of the post-independence referendum “vow” on entrenching Holyrood’s powers, a new subsection was inserted into the Scotland Act 1998, giving statutory recognition to the Convention: “But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

To many, this looked to be a legal right for Holyrood to refuse consent to changes to its powers and rendered its status as a “mere” convention somewhat less clear. Yet, in the Miller case, the UK Supreme Court found that embodying the Convention in law does not in fact turn it into law but rather “entrench it as a convention.” This is a rather puzzling view—but one that means that it still cannot be legally enforced.

All the above suggests that Scotland certainly cannot “block Brexit.” However, it would be disingenuous to suggest that Scotland has no powers in the Brexit legislation process. At the very least, the express inclusion of the Sewel convention in the Scotland Act makes it impossible to ignore politically. To be sure, the provision is that Westminster will not “normally” invade devolved competences without their consent, and much has been made of this. But if “normally” simply means the UK Government’s stipulated interpretation of the term, then the provision is pointless. Equally, if the UK Government ignores Sewel, then devolution loses its point.

The question, then, is whether the UK government could even manage to adopt legislation where devolved consent had been refused. Persisting with such legislation would surely be unconstitutional behaviour, ignoring no less than an “entrenched” Convention, and a cornerstone of our devolved Constitution.

Constitutional theory acknowledges that Conventions, such as Sewel, exist for good reason: they are the "glue" that holds the Constitution together. If the government ignores them, it acts unconstitutionally, and risks dire consequences—all the more so if the Government concerned is a minority one, which could not necessarily count on votes from some of its backbenchers, or Scottish Tory MPs, in these circumstances.

Part of the problem is that, although the fact is not always acknowledged, EU membership provided an external support system for devolution, facilitating common approaches within the UK. Indeed, EU membership has insulated devolved nations from a unitary UK-wide approach, by, for example, distributing EU funds on a basis more beneficial to some parts of the UK than others, such as with agriculture.

This approach is unlikely to continue post-Brexit, where a unified UK approach is likely to predominate—however unfavourable this may be to devolved interests. Add to this the complicated question of a possible challenge, and Brexit, whatever its final form, risks undermining an already brittle devolution settlement and forcing it to change.

Scotland may not be able to block Brexit, then, but we should not count on Westminster successfully adopting Brexit legislation in the absence of its consent. If it does so, it risks flouting important constitutional checks and balances, prompting, as some threaten, a constitutional crisis. And what will happen then?