Scotland’s Brexit Bill rejection could be the start of a new constitutional crisis

This article by Stephen Clear, Lecturer in Law, was originally published on The Conversation. Read the original article.

“Vote leave to take back control” – but control of what, and from whom? The plethora of questions stemming from this Brexit mantra have already threatened to steer the UK towards a new constitutional crisis. And now, in an unprecedented move, the Scottish parliament is expected to, for the first time, refuse a legislative consent motion (LCM) from the UK government relating to the EU Withdrawal Bill.

First minister Nicola Sturgeon has called it part of Scotland fighting back against attempts to undermine the devolved administrations, and Westminster’s opportunistic Brexit “power-grab”. But it may also just be the first step in a new bid for Scottish independence, and ultimately a constitutional crisis for the whole country.

Sometimes referred to as a Sewel motion, a LCM is a motion passed by the Scottish parliament, Welsh assembly or Northern Irish assembly indicating their respective agreement to Westminster passing new laws in areas that they would traditionally have control of – for example health or education.

LCMs operate on the basis that, by convention, the UK legislature will not normally pass laws that either directly affect a devolved subject matter – areas which are typically controlled by the devolved government such as health, or education, for example – , or change the competence, or powers, of a devolved legislature or its ministers, without consent to do so.

However, while these rules exist politically (and have been recognised in the Scotland Act and Wales Act), they are not legally binding. Nor do they limit the sovereign power of the UK parliament.

Devolution disputes

Since 2017, both the Scottish and Welsh governments have disputed the repatriation of powers from Brussels to the UK in areas that are theoretically of devolved importance, but in practice are governed by EU law (which currently takes precedence over domestic rules).

The devolved governments’ concerns relate to 24 retained areas of control, including agriculture and fisheries. At present, the UK government, under the “constitutionally insensitive” clause 11 of the Brexit Bill, states that they should have power to amend “retained EU law”, rather than Edinburgh, Cardiff and Belfast.

The UK government argues that they need to retain these powers, for an intermittent period of time, so as to create a new UK-wide legal framework to replace EU legislation. It claims this is needed to protect the UK markets, and avoid a direct impact on trade via divergence across the different UK regions.

The Scottish government, however, argues that such action defies the will of the Scottish people who voted in favour of Scottish devolution. Sturgeon has said that the UK government cannot be trusted with devolution, and the principle issue is that “the consent of the Scottish parliament to the removal of any of its powers should be an absolute prerequisite”.

Scotland’s Brexit minister Mike Russell has added that refusing the LCM presents the Scottish parliament with a powerful opportunity to unite together and “protect the powers of devolution”, by sending a signal that Scotland will not accept attempts to constrain their powers.

Although these are both strong political sentiments, refusing a LCM – alone – is less likely to achieve legal impact on the Brexit Bill.

Scotland fronting the challenge

By contrast, following months of negotiations, the majority of Welsh assembly members (AMs) are expected to back the Brexit Bill, and approve the LCM. This is on the basis that the EU powers will be held in Westminster for up to seven years before being devolved back to Wales.

But why the differing opinions over LCMs? It is worth noting the different political climate in Wales compared to Scotland. The majority of Welsh constituencies voted in favour of Brexit. And there are a higher percentage of UKIP and Conservative AMs in Wales compared to MSPs in Scotland.

Furthermore, with the collapse of the power-sharing agreement in Northern Ireland, there is no official government representing Nothern Irish views in these negotiations.

Where next?

The legal reality is, even if the Scottish parliament refuses to approve a LCM, Brexit legislation will not be delayed. Furthermore, the UK government has already indicated that it is willing to challenge Scotland over its recent legislation pertaining to Brexit. But, as in previous cases, it is likely that the Scottish government will similarly want to launch a legal challenge in the Supreme Court. This time relating to new laws that go against the devolved legal competence of Scotland.

However, given UK sovereignty rules, and that the Supreme Court has already stated that LCMs are just political conventions – and that policing their scope and manner “does not lie within the constitutional remit of the judiciary” – it seems unlikely that Scotland will enjoy much success in pursuing such arguments.

But that won’t be the end of things. Instead, the looming constitutional crisis may come politically. There will likely be consequences for Westminster, which will be seen as defying the will of the Scottish people “again”. They voted in favour of devolution after all. Scotland also voted against Brexit, and yet is having to go through with it too. With this backdrop the whole country may very well be heading towards a new constitutional crisis and a second Scottish independence referendum.

Publication date: 16 May 2018