One aspect of the Supreme Court’s ruling last week that might have escaped your attentionby Sionaidh Douglas-Scott / January 31, 2017 / Leave a comment
Constitutional cases rarely enter the public consciousness in the UK, but the Miller case is different. Miller has been widely proclaimed as the most important constitutional case of its generation. Indeed, how could this be otherwise, given its high media profile, and arresting press headlines which castigate judges as “enemies of the people,” or give potted biographies of our senior judiciary?
Most of those who have taken an interest in this case will know it as one in which the importance of parliamentary sovereignty was reaffirmed, and in which the Supreme Court agreed with the High Court (albeit by majority) that parliament must give legislative authority for Theresa May to trigger Article 50. But there is probably less awareness of the other key issue decided in Miller—which is that devolved parliaments have no legal right to refuse their consent to such legislation. On that issue, the UK Government won its case unanimously. In fact, Miller relates not just to the rights of one parliament at Westminster, but to the rights of four parliaments in each of the UK’s four capital cities.
This devolution dimension is highly important, for it goes to the very existence of the United Kingdom. Brexit is revealing the fractures within Britain. Leaving the European Union may lead to the breakup of the UK, which is not a unitary state, although there was just one EU Referendum throughout the UK. But of course, Scotland and Northern Ireland voted in favour of remaining in the EU and argue that their votes should also be respected. Since 1998, there has been considerable devolution within the UK, leading, some argued, to a fundamental change in the British Constitution. In Miller, lawyers for the Scottish, Northern Irish and Welsh governments argued that legislation devolving powers to Holyrood, Stormont, and Cardiff required agreement of those legislatures before the Article 50 notice was served. Miller is notable for the copious references made by advocates to old cases, dating from the English civil war, as support for the argument that the executive should not claim prerogative power at the expense of parliament. But the authorities cited by the Scottish Lord Advocate were no less ancient, with reference to the Acts of Union of 1706 and 1707, and the Scottish Claim of Right of 1689. Each side was staking its claim on aged and revered constitutional history.
But it was a recent provision, the Sewel Convention, on which the most important arguments turned. Although devolution legislation was crafted in a way that affirmed the Westminster Parliament sovereign overall, nonetheless in July 1998, John Sewel, while a Minister of State in the Scotland Office, famously stated, “… 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.” It was argued devolved legislatures certainly should have a say because Brexit would massively affect their powers. And (for Scotland at least) it was clear that such consent would not be forthcoming.
But the Supreme Court were having none of this. They unanimously held that constitutional conventions, such as Sewel, are political in nature, and not enforceable by the courts. As much of the famously uncodified British Constitution rests on such conventions, this means that a great deal of it is legally unenforceable.
However, the Scottish argument in Miller went further. For the Scotland Act 2016 made changes that supposedly put the Sewel Convention on a statutory basis (by including it in legislation) as part of the post independence referendum “vow” on entrenching Holyrood’s powers. To many people this looked to be a legal right for Holyrood to give its assent to changes to its powers. A similar provision is to be found in the Wales Bill (which is not yet law). Yet the Supreme Court found that embodying the Convention in law does not in fact turn it into law—a holding which might at the least seem a bit baffling.
Nor will this ruling have been sweetened by Theresa May’s Lancaster House statement that the UK would not be remaining in the Single Market, nor very probably in the Customs Union. This appeared to have completely ignored the Scottish Government’s recent arguments (which May had pledged to consider) which make the case for Single Market membership for the UK, or for Scotland, at least.
The perception is that devolved nations are being frozen out of the Brexit process. For some time, it seemed as if devolution might have altered the British Constitution, decentralising it, rendering parliamentary sovereignty less absolute, and guaranteeing the legal competences of other parts of the UK. Yet Brexit shows this not to have been the case. Politically, the devolved governments have been “frustrated” (in the words of Nicola Sturgeon) by meetings of the Joint Ministerial Committee on Brexit, and now the UK’s highest court has deprived them of a legal option at a crucial stage in the Brexit process. This looks nothing like federalism, a word that was cautiously being applied to some devolution arrangements prior to Brexit.
Will this insistence on a unitary response to Brexit lead to a shoring up of the Union, or instead to an unstoppable drive towards independence (in Scotland, at least)? Time will tell.