Supreme Court: NI and Scotland have no power to stop or put conditions on the UK leaving the EU…

Something of a 101 in the British Constitution for a Government that foolishly in my view tried to challenge the primary position of the Westminster Parliament.

For more local interest, here’s the relevant section of that judgement from the UK Supreme relating to Northern Ireland and the devolved regions:

  • The devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to UK Government and parliament, not to the devolved institutions. Withdrawal from the EU will alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law. [129-130].
  • In view of the decision of the majority of the Justices that primary legislation is required for the UK to withdraw from the EU, it is not necessary for the court to decide if the NIA imposes a discrete requirement for such legislation [132].
  • The decision to withdraw from the EU is not a function carried out by the Secretary of State for Northern Ireland in relation to Northern Ireland within the meaning of section 75 NIA. Moreover, section 1 NIA, which gave the people of Northern Ireland the right to determine whether to remain part of the UK or to become part of a united Ireland, does not regulate any other change in the constitutional status of Northern Ireland [133-135].
  • As to the application of the Sewel Convention to the decision to withdraw from the EU given the effect on the devolved competences, the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU [136-151].

For breadth, here’s the judgement of the two out eight dissenting judges:

  • Lord Reed, with whom Lord Carnwath and Lord Hughes agree, considers that the effect which Parliament has given to EU law under the ECA is inherently conditional on the application of the EU treaties to the UK and therefore on the UK’s membership of the EU. The ECA does not impose any requirement or manifest any intention in respect of the UK’s membership of the EU. It does not therefore affect the Crown’s exercise of prerogative powers in respect of UK membership [177].
  • Lord Carnwath observes that service of notice under Article 50(2) will not itself change any laws or affect any rights but is merely the start of an essentially political process of negotiating and decisionmaking within the framework of that article. The Government will be accountable to Parliament for those negotiations and the process cannot be completed without the enactment by Parliament of primary legislation in some form [259].
  • Korhomme

    the judgement of the two out [of] eight dissenting judges

    Three judges dissented from the decision of the eight in the majority.

  • Croiteir

    As far as the bit about Brexit and the ability of devolved regions, GFA et al.. Told you so. And I will say it again. It is time for nationalists of all hues to realise what the signed up to. The principle of consent, for those here who are sow on the pick up, is solely referring to the reunification of the country. It is the unionist veto. The GFA was and is a bad deal for nationalism. When will nationalism take a good look in the mirror. I suppose that SF are doing this now, But they are serial self-deluders and I fear will walk into Stormont again without sufficient change.

  • From the BBC’s Home Affairs Correspondent Dominic Casciani, in the live text commentary [10.51]

    During the four-day hearing in December, the justices heard arguments that Northern Ireland had a unique place in the UK constitution because of the nature of the 1998 Belfast Agreement and the devolved bodies that flowed from it.

    Counsel argued that Northern Ireland’s constitution cannot be changed without a vote by its people. In its judgement, the Supreme Court unanimously ruled that not only did the devolved bodies have no role in deciding the future of the UK as a whole in the EU, Northern Ireland had no special status beyond this either. They ruled (paragraphs 126 – 135) that while Northern Ireland’s people did indeed have a fundamental constitutional say on being part of the UK, that did not extend to being part of the EU.

    The court said:

    In our view this important provision which rose out of the Belfast Agreement gave the people of Northern Ireland the right to determine whether to remain part of the UK or to become part of a united Ireland. It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the UK from the EU.

  • file

    The only thing I like about the Good Friday Agreement is the implication that, once the Secretary of State has decided to hold one referendum on Irish unity, he will continue to hold a referendum every 7 years thereafter UNTIL the majority vote for Irish unity.
    As the French poet Verlaine wrote: ‘et tout le reste est littérature’. Mind you, he was French, but the point is valid.

  • Dan

    .
    Good.
    The less influence incompetent MLAs have on national affairs the better.

  • Katyusha

    Withdrawal from the EU will alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law.

    That is, the Westminster Parliament can alter the competence of the devolved administrations at will. They have no federal power of their own and are completely subject to the whims and mercy of the Westminster Parliament.

    As to the application of the Sewel Convention to the decision to withdraw from the EU given the effect on the devolved competences, the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU [136-151].

    So the Sewel Convention is worth nothing. Westminster can alter the competence of the Scottish Parliament (as noted in the first point) and there is no mechanism for the Scottish Government to challenge or appeal that.

    British democracy is such a sham. Less of a sham than it appears, as Orwell wrote, but his case was that Parliament more-or-less tends to represent the will of its peoples, in spite of its archaic system. In cases like this one, where there is a clear divergence of the will of the Scottish people and that of the conservative Government, the flaws in the system are thrown into sharp relief. One could hardly blame Scotland for leaving as a result.

  • Colm Heaney

    How many times will this lie/misunderstanding be repeated…. It doesn’t mean there will be a referendum every 7 years. It means there has to be at least 7 years between refs.

  • Kevin Breslin

    Both do have the power to leave the UK however. With little flexibility to protect against a One size fits all Fool English Brexit, this prospect does increase.

    You have to wonder what sort of bubble extreme unionists were thinking when they thought Brexit would somehow make the rest of the population of the UK get pigeon holed into a culture spearheaded by embaressments like Michael Gove and Paul Nutall who were both unhappy Parliament has a say on things.

  • Croiteir

    Then you are going to be badly disappointed, it does not say that, what it does say is that the referendum cannot be held for another 7 yrs at least, that means it may, for arguments sake, be another 20 yrs.

  • Kevin Breslin

    What was a bad deal for Irish nationalism was some group claiming without mandate to be the real government of Ireland while doing their upmost to segregate Ireland.

    At least unionism was willing to accept Irish unity under the principle of consent.

  • Teddybear

    Why should the toy town assemblies of political pygmies have a say? They’re not soveriegn.

  • Croiteir

    I take it you cannot argue that the GFA was a good deal for nationalism then?

  • the rich get richer

    There too busy burning wood pellets to have time for this sort of thing…….and a damn good thing too….just give them plenty of wood pellets…They are big into Fire and Brimstone………

  • Croiteir

    As many times as it takes Colm, it shows how well sold the GFA was and how far away from reality the spin was.

  • Croiteir

    Just said 8 to 3 on the radio?

  • NotNowJohnny

    Can you quote the relevant section of the GFA please?

  • NotNowJohnny

    Except it is not a unionist veto. It’s a veto for the people of Northern Ireland. If the people of Northern Ireland choose for NI to become part of a UI, there is not a darn thing that unionists can do about it. Not even if they have a majority in the Assembly and hold the post of FM. Michelle O’Neill won’t need Arlene Foster to consent in the circumstances. There is no unionist veto under the GFA.

  • file

    Certainly NotNowJohnny, here you go:
    2. Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

    3. The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under thisSchedule.

  • file

    Croitéir … I know what it says, but logic dictates otherwise. If he thought 7 years ago there might be a majority for a Unitied Ireland, then that likelihood can only have increased in the intervening 7 years due to death rates and birth rates in this here pravance.

  • file

    see logic below …

  • NotNowJohnny

    I’m trying to work out how this supports your interpretation above. Can you help me out here?

  • Kevin Breslin

    Much better than any alternative that was on offer to the people of Ireland, from those on the outsides. Nothing has caused more division in Ireland than trying to force unity through violence.

  • Kevin Breslin

    Whoever is first minister holds no relavence if there is still a unionist majority. Heck the SDLP and Sinn Féin and Fianna Fáil could merge into one party more or less, but it’s not going to win over the mandate for a pluralist united Ireland without appealing outside of tribal divides.

  • Jollyraj

    I think you mean there is no ‘Protestant’ veto. There isn’t – which is quite fair enough.

    If the majority in NI consistently continue to prefer to remain in the UK (and are thus ‘unionist’ inasmuch as that label means anything here) then there never can nor will be a UI. That is democracy. I suppose it is technically thus a ‘unionist’ veto – while by no stretch being a ‘unionist political party’ veto, just an empowerment of the people of NI to choose their own future. And that, certainly for the next generation at least, looks like being in the UK. Republican bitterness at the so-called ‘unionist veto’ is really just bitterness against a democracy in which the majority don’t want what Republicans want them to want.

  • NotNowJohnny

    Ive absolutely no idea what point you are trying to make here.

  • Jollyraj

    Indeed. Which is much more relistic than the frankly daft idea that we would have it again every 7 years no matter what. That could mean having, say, ten referendums in a row encompassing 70 odd years in which the Republicans lose every time out but still insist on having them ad nauseum….

  • Jams O’Donnell

    These sorts of comments are one of the (minor) reasons that people in Scotland and NI will be persuaded that their participation in ‘democracy in the UK’ is a sham, and that the only remedy is independence. Keep it up, Ted – you and Mrs May and her party are doing our campaigning for us.

  • Croiteir

    As I say – you cannot argue that the GFA was a god deal for nationalists

  • NotNowJohnny

    No, I really did mean there is no ‘unionist veto’. The good thing about the GFA is that it got unionists and republicans both to finally acknowledge that the minority cannot impede the will of the majority which was been the big problem in Ireland for centuries up until 1998.

  • Croiteir

    I would have an issue with that, it does not follow

  • lizmcneill

    Wasn’t Sammy Wilson insisting at the time that there would be no hard border? Border with Cloud CuckooLand is more like it.

  • runnymede

    These challenges from Scotland and NI were meritless, and have been shown to be so.

  • file

    Does this follow?: there will be a first referendum, it will vote to stay in the UK, but that will not be the end of the matter for all time. After a period of time (I reckon 7 years but whatever about that, after a period of time), there will be another referendum … and this process will continue until a majority vote in favour of a united Ireland. After that there will be no more referendums on the subject.
    But on the original point, if someone thinks at this point in time that it is likely that there will be more Latino than Caucasian people living in the USA now, he is even more likely to be of that opinion in 7 years’ time given population statistics and migration patterns.

  • file

    Oh Jesus! Just tell me what you think it means …

  • John Collins

    These devolved administations are only a joke. You are either fully in or fully out. This is why I am glad we never got HR in the South. It was ever only a glorified county council body with no real power.

  • John Collins

    Never was the actions of the 1916 men and women proved more justified than in this judgement. It proves that HR would been an absolute joke.

  • Annie Breensson

    The UK Supreme Court has ruled that the devolved assemblies are subservient to the Westminster government in this matter. It did not, however, rule that the challenges were without merit.

  • Katyusha

    I’d argue with that, Kevin.
    A nationalist electorate energised by competition between SF and FF, with the fierce rivalry, contrasting styles and opposing economic policies between them, could in the near future very easily win over a mandate for unification without appealing outside of tribal divides.

    Anyway, with a young detoxed SF, a slick and adaptable FF that built the economy of the Irish state, and impending economic and social disaster from Brexit coming down the tracks, appealing outside the tribal divide is a lot more plausible going forward.

  • lizmcneill

    I’ve never felt so disenfranchised in my adult voting life. It feels like the Brexit Britain train is full stream ahead for a cliff, with poor NI tied to the sharp end, and none of the MPs on board are willing to pull the emergency brake.

  • Kevin Breslin

    My point is becoming the biggest party in terms of seats doesn’t translate into border poll success NNJ.

  • Kevin Breslin

    I get the appeal of FF and SF, I’ve been to public meetings of both. I don’t think they are necessarily the opposite sides of the spectrum here. You could throw Fine Gael, Labour, Social Democrats and whoever else.

    The reality is we live on an island where 1/4 of our island’s denizen population primarily identify as either British or Northern Irish. A failure to reassure these people they are valued contributors to Ireland even if they don’t identify as primarily Irish, is perhaps one of many hang ups Irish nationalism seems not to be able to deal with.

  • Kevin Breslin

    Well the unionists won’t want a fully wet border either.

  • NotNowJohnny

    I got you. I’d actually already made the very same point hence my confusion.

  • Jams O’Donnell

    Well, you’ll all find out how meritless they were when one of the main points to be made in the forthcoming independence referendum in Scotland is how one of the constituent countries in the UK is arrogantly pushed aside by the English majority in Westminster. Keep up the good work – it all helps the SNP.

  • Jams O’Donnell

    You will find that the joke will be on Westminster when they go to the UN as ‘England and Wales’, with Trident homed in Toulon.

  • Kevin Breslin

    Absolutely not Croiteir, what was on the table was what the SDLP and Sinn Féin along with the Fianna Fáil lead government were capable of winning a referendum on. Irish unity needed a peace process, it needed cross border co-operation and it needed the chance to show the population what we were like in the handling of our own affairs.

    I don’t see unionism as the enemy, I see them as the competition.

    Unfortunately when it comes to self-determination, tribal relativism dominates the debate over delivery.

  • johnny lately

    “Nothing has caused more division in Ireland than trying to force unity through violence.”

    The same can be said for partition Kevin.

  • johnny lately

    Your forgetting File its up to Perfidious Albion alone, whether we can have a border poll or not in Ireland and up to the same people to decide how the yardstick should be measured and the tipping point reached when deciding whether to allow a border poll. That seven years could stretch to 10 20 or even never but the good thing about it is, in any future border poll you only have to be lucky once, unionism will always have to be lucky.

  • hotdogx

    the next generation still in the uk,
    hehe, we’ll see

  • lizmcneill

    I really don’t know what they thought would happen.

  • Jollyraj

    Great! You’re on.

    Let’s forget all the Orange/Green BS for the next 20 years, all work to improve the lot of everyone in NI, then have the referendum on the border. By then, after two decades of peace and co-operation we might find no one cares all that much and we all live happily ever after with whatever the decision is.

    One cannot say fairer than that. And nobody – nobody- needs to get hurt in the interim.

  • hotdogx

    Those who vote orange will always vote orange those who vote green will always vote green, an emotional position with no reasoning possible. It’s those swing votes that count! Both the nationalists population and the swing voters are on the up.
    Why delay the inevitable. The Project of dividing Ireland to hold on to the colony has failed. There will always be Irish people in Ireland and they will always want to manage their own affairs. Unionism places it’s faith in disastrous Brexit Britain. Not only was their incompetence laid bare for the world to see today, the sheer insignificance of the stormont government was made evident. The borders will go up and the war will return. They are wreckers, they are doing incredible damage to a delicate agreement. Theresa May does not even think it worth making a speech at the Dail. The brits dont give a dam, the republic will come through this as part of the Eu. NI will plunge and only the Irish will be there to save it. Those swing voters will make the right choice. Fear is the only thing keeping the DUP and the union in place.
    The status quo is always better. As the saying goes “The devil you know is better than the devil you don’t”
    Only now as NI becomes a violent wasteland again, many may look to better future in a UI. We’ll see

  • Kevin Breslin

    Are not the peace walls a partition?
    Are they not a hard border we have already?

    What exactly has the continued armed campaign really achieved in terms of uniting Catholic, Protestant and Dissenter?

  • Kevin Breslin

    Well 30% or so big U unionists (not simply pro-union Alliance types) like Mike Nesbitt, Dawn Purvis, Danny Kinehan and Slyvia Herman knew exactly the upheaval it would cause here and voted cautionary for Remain.

  • Kevin Breslin

    My apologies, I think Gove has at least conceded that Parliament should have with grace. I won’t begrudge him.

  • Kevin Breslin

    Apparently the 8 dissented against the 3 …

  • file

    One of my problems is that I rarely forget anything :):) But look, if you think something is likely now, and if population trends etc are only going one way, perfidious Albion notwithstanding, how could you possibly think the same thing will be less likely seven years hence? Does not compute … logic circuits burning up. It is clear to me that Great Britain wants out of here … and who wouldn’t?

  • aquifer

    It does not take a Nobel prize winning Economist and Philosopher to tell you that the Brexit referendum was a massive fraud based on lies and false promises, but I am grateful for the reminder provided by Amartya Sen.

    https://en.wikipedia.org/wiki/Amartya_Sen

    MPs must do their duty and put an end to this non sense. It is pityful to see supposedly grown men and women kow-towing to this gaggle of egomaniacal opportunists, buying the political equivalent of stolen goods at face value.

    WWII is clearly forgotten. This late lament for lost English empire should be confined to people no longer capable of getting to a polling station on their own two feet.

  • file

    Northern Irish does not exist as a possibility for nationality under the Good Friday Agreement: we have 3 choices: I) Irish, ii) British; iii) both. You can have any colour you like so long as it is black …

  • grumpy oul man

    Well if by that you mean they can have their wishs and the wishs of the people they represent overturned by their colonial masters.
    I’m afaird your right. Scotland at least has a leader who stood up for their people the ex leader here embarrassed us with her lapdog routine when her English owner snapped her fingers.

  • grumpy oul man

    You the man who whenever any unionist is criticised knee jerks to their defence and who never miss the chance to insult republicians and justifys every unionist display of sectarianism by bringing up something that happened 20/30/40 years ago, just said lets forget the orange/ green thing.
    I am impressed.
    But what NNJ could have meant that the days of unionisn useing mobs and terrorists to make others tow the line is over.
    They can no longer depend of their tame killers and angry mobs to force people to do as they want.

  • Kevin Breslin

    Never said it was a nationality, I just said it was an identity. I identify both as Northern Irish and Western Irish, but my nationality is Irish.

  • Fear Éireannach

    They argued for Remain, and said it would destabilise the peace process etc. But when there was a vote for special treatment for NI in the Assembly they opposed this and they will vote for Brext in Westminster in the coming days.

    So they agrue that this will cause economic and political damage to NI and they are still voting for it.
    They are a disgrace.

  • file

    Aye, and I identify as a Spanish woman … but I am not one!

  • Kevin Breslin

    We’re going to face the same problems, Mike didn’t go for special status but we know the UK isn’t giving the Assembly a major say as yet. Pro-Remain unionists do have the unenviable task of facing up to the issues of freight delays, subsidy cuts and perhaps a reduced block grant while being tied to a UK that we both agree does economic and political damage to NI. I’ve met Steve Aitkin and Philip Smith in person on this topic, both know there are woes to come for both islands. Their concern is genuine, but it’s difficult to balance the Brexitscepticism they have with grassroots UUP voter Euroscepticism.

    They’re pretty much lumping themselves in with the populist we’ll respect the verdict but be sceptical of the outcomes position that Labour are doing.

    Basically if pro-Remain pro-union politicans cannot stand up for their section of the 56% and their concerns in some other proposals, they are going to risk losing them to the likes of Alliance and the Greens, maybe even nationalist parties.

    I wouldn’t call it a disgrace, if unionists struggle to offer mitigations to Brexit, the pressure is on their competitors to prove Irish unity is a better alternative even though both our islands are going to be dogged by a fuzzy legal bi-insular relationship for the short to medium term because a bunch of English wanted to wave flags and think globalisation means cheaper NZ lamb and worshipping Trump.

    Frankly grassroots UUP and DUP supporters who voted leave and were dismissing the problems that a non-EU to EU border would have really need to demand to know what their politicians are doing to mitigate the unintended consequences here, or offer the rest of us a solution to their Brexit problem.

    NI can only function if the totality of the 3 strand relationships get supported by the public within. Mike Nesbitt was right when he said Brexit will provoke a more vocal form of Irish nationalism, because of perceived Strand 2 damage but an insular campaign for Brexit dominated by insularist English people will probably be bad for unionism just as much.

    I don’t know why the UUP did vote against special status, but I certainly trust them better than the DUP to take on the practical problems it will cause without accepting Westminster hand-waves without scrutiny.

    An old friend of mine defected to the DUP from the UUP, partially over Brexit, partially because Mike was open to abortion in the case where a foetus may have a serious life shortening condition. I’m sure there is going to be pressure on the UUP to show its Brittishness and moralist side to their own constituency.

    My opinion is that both unionist and pro-Leave voters won’t be so keen to throw caution to the wind over Brexit when they see the issues on their doorstep. They would have to live in some sort of reality denying bubble to pretend the changes won’t happen.

  • Kevin Breslin

    You could be. Fact is realpolitik is the biggest challenge to identity politics. Identity is personal.

  • file

    It is also sometimes fictional and complete bollix – like that woman in the USA who was the head of a black rights group – she identified as black but was, in fact, white.

  • Kevin Breslin

    So what?
    Insulting people’s self determination is not going to broaden the appeal of any political movement.

  • Jollyraj

    Ok, GOM has showed that he lacks the basic maturity to consider the suggestion that we try having a few decades of peace and co-operation (instead of the usual bs) and then a once-for-all-time poll to settle it.

    Any of the rest of you fellers keen?

  • eireanne3

    The judgement informed us that devolution is dead as is the myth of a United Kingdom. We are all now aware, if we never were before, that the UK is the unitary state of England https://eurofree3.wordpress.com/2017/01/25/shut-up-and-eat-your-brexit-englands-decision/

  • grumpy oul man

    Well that was strange.
    Will you show the maturity to stop harping about what hapoened 20/ 30 years ago.
    And will you support tackling the loyalists terror groups.
    It just that this seems a suspicious change of attitude from you in the past it all been themmuns and mopery from jolly( not to mention a inability to understand the written word) i am up for change but can you guarantee that the next time a unionist does something stupid you wont go off on a mope or shout themmuns.
    I am afaird that it is a bit hard to believe this new you since it a big turnaround from the old you.
    But lets give it a try.
    You of course realise that what your suggesting means no more violence from unionists nothing like Gusty in 6y or house burnings in 69 nothing like the violent UWC or drumcree of flags.
    This will mean a root and branch change for unionism.
    We will see cam a leopard change its spots.

  • Jollyraj

    “Well that was strange.”

    Nothing at all different about what I’ve written there and the general pattern of my comments on SoT.

    “Will you show the maturity to stop harping about what hapoened 20/ 30 years ago.”

    Of course, but you don’t seem to apply this same standard to yourself when you write things like:

    “You of course realise that what your suggesting means no more violence from unionists nothing like Gusty in 6y or house burnings in 69 nothing like the violent UWC or drumcree of flags.”

    You seem to suggest we should forget all the criminal acts of the IRA and Sinn Fein in the past while also wanting to perpetually harp on the equally despicable crimes commited by Loyalist terror groups in the past – and indeed blame them on present day unionists.

    “And will you support tackling the loyalists terror groups.”

    I always have done. I challenge you to find a direct quote where I have supported Loyalist terror groups.

  • grumpy oul man

    But you dont seem to be aware of unionist violence. For example when arlene tries to deflect attention from her mess by shouting about what happened to her father,you leap to her defence , you also have ignored the obvious involvement of the DUP in the whole RHI thing and even on several occassions tried to pass some of the blame on the shinners.
    Now it is true that you have not defended the unionist terrorists and the involvment of the DUP/UUP with those terror groups. ( lets be honest it is indefensible)You have ignored it, a classic unionist move pretend it never happened.
    But let us see, as more comes to light (which looks likely) about DUP mismanagement of funds and handing out public money in a secterian manner we will see if your new self can bring yourself to condem then or will you kneejerk yet again.
    Like i say we will see.