The devolved governments are stepping up their challenge to Theresa May
The Supreme Court will next week hear the UK Government’s appeal to the decision by the High Court that it is Parliament, rather than Government, that has the legal authority to trigger Article 50.
While much of the focus has been on what role MPs and peers should play, the devolved governments are also hoping that their legislatures will get a vote on the decision.
Having been granted the right to intervene in the case, both the Scottish and Welsh governments are arguing that since policy issues within the competence of the devolved bodies will be affected by leaving the European Union, they too should have a legally binding vote.
Ahead of appearing for the Scottish Government, the Lord Advocate, James Wolffe QC, has published his formal case to the court.
He argues that membership of the European Union is ‘assumed in each of the devolved institutions’ and that ‘membership of the EU affects substantial areas of policy which are within the competence of the Scottish Parliament and the Scottish Government.’
Since leaving the EU would ‘change the competence of the Scottish Parliament and the Scottish Government’ and ‘change the law within devolved competence’, the Lord Advocate argues that a process known as a Legislative Consent Convention should be followed.
Under this process, a motion, also known as a Sewel motion (name after the Scotland Office Minister in the House of Lords who presided over the passage of the Scotland Act in 1998 that establish the Scottish Parliament), one or more of the devolved legislatures pass a motion agreeing to the UK Parliament passing legislation on a devolved issue over which the devolved body has regular legislative authority.
A similar case is being made in Wales by Counsel General , Mick Antoniw. In his formal submission to the Supreme Court he argues that an important ‘constitutional principle’ is at stake in the case,
He goes on to conclude that triggering Article 50 and then withdrawing from the EU would ‘modify the competence of the National Assembly for Wales…and the Welsh Government under the 2006 Act.’ Since such legislation is an Act of Parliament, he concludes, the UK Government cannot trigger Article 50 without approval from the UK Parliament. He argues also for the use of the Legislative Consent Convention to be adopted as well.
The submissions come as Lord Kerr, the UK’s former Ambassador to the EU who authored Article 50 has warned that there is less than a 50 per cent chance of the UK achieving an orderly Brexit within two years.
Speaking to an event at the LSE, he argued that the most important phase of negotiations between the UK and the EU is likely to take place by around the autumn of 2018, and concluded that the British Government’s proposals for Brexit next spring would, in all likelihood, be rejected fairly swiftly, leading, he argued, to ‘an extremely nasty bout of xenophobia in the Daily Mail and Sun in the summer, far worse than the recent attacks on the judges as enemies of the people‘.
Speaking fairly frankly, Lord Kerr warned that ‘the fog in the channel is getting thicker all the time’ and concluded that even if agreement on a Brexit deal could be reached by the spring of 2019, ‘a demob happy European parliament’ would refuse to ratify the deal in the final few months before its election.
Ed Jacobs is a contributing editor at Left Foot Forward
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