Scotland and Northern Ireland’s legal consent for Brexit is not required – Theresa May

There is no opt-out from Brexit. And I will never allow divisive nationalists to undermine the precious Union between the four nations of our United Kingdom.”

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 This will transfer all EU law into British law to allow time for what measures are to be repealed and which retained.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.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London

  • john millar

    “If someone came up to me in the street and told me he was far better qualified to spend my money for me I’d give him short shift. ”

    This in essence what governments do “we know best” so by a plethora of devices ( Income Tax ,Excise Duty, Value added tax, Petrol duty Road fund licencing, Rates, Corporation Tax ,Inheritance Ta,x Capital Gains Tax) they take “my money” and spend it as they choose – a large amount of which is spent on larded arses polishing seats to no other obvious purpose

    which confirms you comment

    “The average mind is slow in grasping a truth, but when the most thoroughly organized, centralized institution, maintained at an excessive national expense, has proven a complete social failure, the dullest must begin to question its right to exist.”

    The source of the power/right to exist is taxation -limit this and limit the power —–but then turkeys don`t vote for Xmas

  • Obelisk

    Firstly, I never said that Brexit guarantees a United Ireland. I said it eases the path by potentially reconfiguring the debate from one based solely on sectarian identity to an economic one.

    I was also thinking more in terms of the end of Nationalist apathy if border becomes ‘real’.

    As for getting enough votes for reunification, well, the United Kingdom seems to be coming apart at the seams with Scottish Nationalists dominant in Edinburgh, English Nationalists controlling the Tory party and Northern Ireland facing an economic catastrophe that nobody across the water really gives two figs about.

    For all the faux confidence projected in Birmingham, nobody is really tackling the great existential threat to the Union.

    The fact that it’s constituents bits really don’t understand each other anymore.

  • SeaanUiNeill

    Now I do like having roads, and one or two other things that might need me to contribute, John, but I simply cannot see the relevance to my own life of much of what is happening up on the hill, down in Leinster House or in that pseudo-Gothic Pugin nightmare by the Thames.

  • Skibo

    John, You would have thought that would have been the case but And that was under the reign of someone called Theresa May.
    Things are never as simple as they first seem. That is why most countries have customs in airports and ports. How they are going to control all the border crossings, I would be surprised. Unless they do the unthinkable and erect fencing like Hungary and close most of the crossings to keep those pesky EU immigrants coming in.

  • Martio

    Now is the winter of our discontent, as was once said. It will be very interesting to see what happens when the Scots demand a referendum on independence and are told: no. The Scots have little wish to be dragged out of the EU and end up even poorer and more isolated. Likewise with Northern Ireland, there I suspect many of those who may term themselves unionists may be re-evaluating their affinity with the UK.

    Were a referendum on Irish unity to be held would it pass? Personally I don’t know. What I do know is that I am not so sure that any conservative government in Dublin would welcome a united Ireland and the potential problems that may bring, financial and other. And lets not forget, what of those Irish in NI who hold Irish (EU) passports only, as under the GFA they are perfectly entitled to do. You will suddenly have hundreds of thousands of EU citizens living in a non-EU state?

    We live in interesting times.

  • LiamÓhÉ

    Yes, it seemed the UK had largely found its feet, even with Eurosceptics on the wings, in an internationalist and European context but it just does not sit well in the home counties of England. The state of play is such that a hard brexit seems the only way ‘forward’ to settle English politics. It also a strong contrast with the likes of former trading powers like Portugal, or empires like France. Basically, the whole Brexit thing happened by surprise for many, but that is how history runs.