UK Supreme Court Article 50 ruling
Minister for UK Negotiations on Scotland's Place in Europe Michael Russell
Scottish Parliament, January 25 2017
At the outset can I make it clear that the Scottish Government welcomes yesterday’s ruling from the Supreme Court that Article 50 cannot be triggered without an Act of the Westminster Parliament.
That ruling comes as a stinging rebuke to the UK Government, and its stubborn refusal to accept the previous, unanimous, Court ruling that an Act of parliament was required before formal notification of the decision to leave the EU. Instead, it tried to plough on regardless towards a hard Brexit, hoping to bypass parliamentary scrutiny.
Effective UK parliamentary scrutiny is now enabled. The parties and members at Westminster will have to rise to that challenge.
In July last year, the Prime Minister assured the First Minister that Article 50 will not be triggered “until …we have a UK approach and objectives for negotiations”.
This was in line with Theresa May’s clear, unambiguous view of how the United Kingdom should operate. The UK, she said, should be a country “in which Scotland Wales, Northern Ireland and England continue to flourish side by side as equal partners.”
Of course that is a sentiment expressed by all the ‘better together’ partners during the 2014 Referendum
So, taking the Prime Minister at her word, when it’s brought forward we will seek to enforce that via the Westminster Bill.
Of course there was another aspect to the judgement. An aspect which has made one thing crystal clear because this whole process, and the determination of the UK Government to pursue a disastrous hard Brexit, is revealing much about the way power is exercised in the United Kingdom and who exercises that power.
Yesterday the Supreme Court considered the arguments put forward in interventions from the Lord Advocate and the Welsh Counsel General on the devolution implications of triggering Article 50.
We are obviously disappointed with the Supreme Court's ruling about the legal enforceability of the Sewel Convention.
But let us be clear about what the judgement actually said.
Notifying the intention to leave the EU will have significant consequences for devolved matters, and the powers of the Scottish Parliament and Scottish Ministers and the court explicitly accepted that. In so doing it is obvious that the Sewel Convention is triggered by a UK Bill authorising the Article 50 notice.
What the court has ruled is that the operation of the Convention is a political matter not legal, and therefore outside the Court’s remit. This is a position urged on the Court by the UK Government – which also resisted any and all efforts to give real teeth to the Scotland Act provisions on the Sewel Convention. The UK Government has at least been consistent in its position – under no circumstances should its action be questioned by judicial authority. Rather than a defeat for the Scottish Government, yesterday’s ruling exposed the inadequacy of the Smith Commission process, and for those who believed that writing Sewel into law would represent a new status for the Scottish Parliament.
It’s a defeat of the Scotland Bill 2016.
As Kenny Farquharson of The Times noted, yesterday’s ruling “on the rights of Holyrood are a deep disappointment”:
“There was an opportunity,” he said “here to recognise the new reality of a changed UK. This is a depressing moment for those of us who've consistently backed home rule for Scotland within a reformed UK.”
Yesterday’s ruling demonstrates how empty were the assurances of being a partnership of equals, and that the Scotland Act would represent a new UK settlement. The UK Government reinforces the old view – the supremacy of Westminster; its immunity from constraint by law or Courts, or respect for this Parliament. We can expect to see more of this as Brexit proceeds, and we already see this attitude in proposals for UK wide regimes, overriding existing devolved competence.
However, last year the Secretary of State for Scotland boasted, in a speech about what he called new realities, that the Sewel Convention was now “written in law”.
But in its submission to the Supreme Court, the UK Government left that decision far behind made it clear that the law was not worth the paper it was written on.
The reality is that, up until now, the UK Government has, in practice, always accepted that a change to devolved competence requires the consent of the Parliament. The UK Government’s own guidance, and this Parliament’s standing orders, is clear that the Sewel Convention applies where a Bill “contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”.
Attempts to argue the opposite would over-turn – and is now in danger of overturning - nearly 20 years of accepted practice under different political administrations both north and south of the border, and fatally undermine the protections given to the Scottish Parliament and Government in the devolution settlement.
It is clear that the Sewel convention will be engaged by a bill that changes the law on devolved matters or the competence of the devolved institutions. Therefore, once the UK Government Bill is published, and in line with this Parliament’s Standing Orders, the Scottish Government will publish a memorandum, setting out the implications for devolved matters and the powers of the Parliament and Scottish Ministers.
As things stand, in that memorandum we will be unable to recommend that the Parliament give its consent to a Bill giving the UK Government the power to trigger Article 50.
We will also use the meeting of the Joint Ministerial Committee next week to continue to press for the sensible, compromise outcomes set out in the paper we published in December.
However, it is becoming clearer by the day that Scotland's voice is simply not being heard or listened to within the UK. The claims about Scotland being an equal partner are being exposed as empty, diversionary, rhetoric.
Last week the Prime Minister unilaterally announced, without any notification or negotiation, that she intended to take the UK not just out of the EU, but out of the Single Market and indeed out of the Customs Union.
That announcement pre-empted a meeting of the Joint Ministerial Committee where the possibility of the whole of the UK remaining in the Single Market were due to be discussed as one of the options in the Scottish Government’s Europe paper.
Indeed the Prime Minister also made her announcement before one of the UK’s negotiating partners, the Welsh Government, had even published its own proposals for the way forward.
How can a unified UK approach be agreed when the Prime Minister doesn’t even bother to wait to hear the position of one of the constituent parts of the UK before pronouncing?
And now the very foundations of the devolution settlement that are supposed to protect our interests - such as the statutory embedding of the Sewel Convention - are being shown to be worthless.
The Scottish Government has done all it can to seek compromise and reach accommodation with the UK Government on the terms of the UK leaving the EU. We have recognised that there is a mandate for England and Wales to leave the EU, even if there is no such mandate in Scotland.
And we were the first administration anywhere in the UK to produce detailed and pragmatic proposals on how to respond to the challenge of Brexit.
It is for the UK Government to show similar pragmatism. It is time for them to compromise. It is time for them to listen and respect the views of others.
It is becoming increasingly clear that the UK Government’s approach to Brexit is not just about the question of EU membership. It is about the kind of country we want to live in.
Do we want to have our future direction determined by a hard Brexit UK Government, determined to turn its back on Europe despite the threats to jobs, prosperity, rights and freedoms?
Or is it better that we take our future into our own hands? Is it better that we determine the kind of Scotland, the kind of Europe, and the kind of world we want to live in?
That is the question all of us should start asking ourselves today. The actions of the UK Government are making that the key question of this whole process. They are closing down the options for Scotland instead of working with us to find the right way forward for everyone.