Scotland look to Veto the UK’s Exit from the EU

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So what can Nicola Sturgeon do? She has said she will examine all options in consort with the European institutions and others to seek to secure continuing links with the EU for Scotland.

One of those options would be a second independence referendum – in order to allow Scotland to join/rejoin the EU in her own right, as a sovereign state.

But what about those other options? In particular, what about the suggestion that Ms Sturgeon might encourage the Scottish Parliament to seek to exercise a veto over the implementation of Brexit?

Does it mean Holyrood has a veto over Brexit?

This scenario is based upon an interpretation of the Scotland Act 1998, the statute which created (or, rather, recreated) the Scottish Parliament.

Clause 29 of that Act, anent legislative competence, empowers the Scottish Parliament to legislate in the devolved areas for which it is responsible – while obliging it to take care that nothing it does is “incompatible” with EU law.

In short, EU law has force in Scotland and, in devolved areas, is enacted and implemented by the Scottish Parliament, not Westminster.

That has led constitutional experts, such as Sir David Edward to suggest that the consent of the Scottish Parliament would be required were it to be suggested that the UK’s relationship with the EU, in legislation and other areas, might be altered.

Sir David made this point in evidence to a House of Lords inquiry. Their Lordships report cited Sir David as envisaging that there might be “certain political advantages” to be drawn from withholding consent.

Which is true. It is further true that it is an established Convention (formerly known as the Sewel Convention) that the Westminster Parliament should not interfere in devolved areas without the consent of Holyrood. Such agreement is customarily given via a legislative consent motion, LCM, at Holyrood.

So does that mean Holyrood has a veto over Brexit? Up to a point, Lord Copper. Firstly, one should understand that relations with the EU have a long and complex history, in the context of the demands for self-government.

What does the law say?

A seat at the EU top table has long been a prize sought after by supporters of independence. Even those who backed devolution, rather than full independence, foresaw that Scotland would develop her own relations with the EU, in consort with the UK.

Thus the White Paper of 1997 which led to the 1998 Act fudged the issue. It said that dealing with the EU was a matter for Westminster, alongside foreign affairs.

But it suggested that the UK government would seek to consult the devolved administration in Scotland and take account of its views.

Let us turn now to statute. The 1998 Act proceeds by specifying the issues which are reserved to Westminster – then grandly declaring that everything else is devolved.

  • Schedule V to that Act lists the reserved areas. At sub-clause 7, it is noted that “international relations, including relations with territories outside the United Kingdom, the European Union and other international organisations” etc…..”are reserved matters.” They are, in short, Westminster’s purlieu.
  • However, it then goes on to note that this reservation does not include obligations under EU law.
  • Hence, Nicola Sturgeon’s argument that Holyrood is entitled to a say: based upon the legal formula which obliges Scotland to adhere to EU law. Westminster might usefully point to the broader Schedule V, reserving relations with the EU to the UK.
  • Then there is a further point. Clause 28 of the 1998 Act notes at sub-clause 7, in dry terms, with regard to legislative competence that “this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

In that single little line is the subordinate nature of devolution. Generally, Westminster will let the Scottish Parliament get on with devolved legislation. Carry on governing. But it is also made clear that Westminster’s ultimate sovereignty over the UK, the entire UK, is unaffected.

So it could be argued – it is already being argued – that, if it came to a constitutional battle, Westminster would have the final say.