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 This will transfer all EU law into British law to allow time for what measures are to be repealed and which retained.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

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