Theresa May has Scotland in mind here of course but the uncompromising “no opt out” applies equally to Northern Ireland.
The “consultation” that is promised is therefore to be by grace and favour of the UK government. But there is still no word on what form that consultation may take. We know now that time is limited as Article 50 will be triggered before the end of next March.
And just as an afterthought, we have no idea of the likely fate of ideas for special associations with the EU for Scotland and Northern Ireland based on powers which would be devolved straight back to them from Brussels, or access to EU funds for Northern Ireland that might come via Dublin on a cross border basis. So far, these have received no open encouragement from London.
Instead the prime minister has announced a Great Repeal of the European Communities Act 1972. This will transfer all EU law into British law to allow time for what measures are to be repealed and which retained.
Mrs May has placed British parliamentary sovereignty at the top of her Brexit list. Repeal opens the door for parliamentarians at Westminster, Stormont Holyrood and Cardiff Bay to have their say. But the say goes only so far. Parliament will not have a veto over triggering Article 50 but only Parliament can repeal the EC Act. The Attorney General for England and Wales will attend court to resist legal moves to require Parliament to be consulted over Article 50 terms. He is expected to succeed. The Great Repeal Act therefore is where the Remainers will take their stand. If sovereign Westminster is not to be allowed not decide on the Article 50 terms, it follows that neither will the devolved legislatures. So runs the logic of the argument.
As a Westminster tactic this is uncompromising but effective. In Scotland however it looks quite different.
Some of the SNP are threatening to block repeal of the Act in Holyrood by refusing a legislative consent motion which convention suggests is necessary from the three devolved institutions ( the Sewell convention). But it is extremely doubtful that such a motion carries a veto power for a variety of reasons, including the cardinal point that EU membership is a matter reserved to Westminster.
This was the Constitution Unit’s take on this at a recent seminar.
This convention is now partly codified in section 2 of the Scotland Act 2016, though with no reference to changes in devolved powers. Sionaidh Douglas-Scott suggested that if they wished to express their opposition to Brexit, or to increase their leverage during the Brexit negotiations, the devolved assemblies might be reluctant to grant legislative consent to the widening of their powers implied in removing the EU law constraint. This would take us into uncharted constitutional territory. So far, Westminster has never legislated on devolved matters in the absence of consent and has always acted as if the Sewel Convention applied to changes in devolved competence (but Westminster legislation has been disputed in Wales.
Our speakers differed slightly in their views on what would happen if Westminster changed the powers of the devolved governments by removing their obligation to comply with EU law without their consent. Jim Gallagher emphasised that a key word in the Sewel convention is ‘normally’ and suggested that the circumstances of Brexit and its aftermath would be anything but normal. Sionadh Douglas-Scott, on the other hand, said that to act contrary to the convention on such a high-profile issue would be unconstitutional and could provoke a constitutional crisis.
As one pro Union commentator has observed, a clash with Westminster over Holyrood’s consent to repeal the EU’s authority throughout the UK would amount to a challenge to Nicola Sturgeon to delay no longer in calling for a second independence referendum. In this scenario as Mrs May has pledged to refuse it, a constitutional crisis would be the result. However there are many moves to make before that point is reached. It seems likely that Theresa May will play a measured and rather aggressive hand.
A legislative consent motion would be unlikely to arise at Stormont as the nationalist parties would be expected to oppose it.