Article 50 wranglings remind us that the indyref was also advisory
Yesterday the First Minister Nicola Sturgeon announced that the Scottish Government will move to formally join the legal battle over article 50.
In her press briefing at Bute House the first Minister said:
The Scottish government is clear that triggering article 50 will directly affect devolved interests and rights in Scotland. And triggering article 50 will inevitably deprive Scottish people and Scottish businesses of rights and freedoms which they currently enjoy. It simply cannot be right that those rights can be removed by the UK government on the say-so of a prime minister without parliamentary debate, scrutiny or consent. So legislation should be required at Westminster and the consent of the Scottish parliament should be sought before article 50 is triggered
The part of her statement regarding the consent of the Scottish parliament is interesting. The plan may well be to ask the Supreme Court to test the convention set out in section two of the 2016 Scotland Act.
It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.
While this is unlikely to succeed it is a good move by Sturgeon.
In the implausible case that the court rules that the Scottish parliament needs to be consulted then Holyrood could delay, alter or derail Brexit. In the more believable scenario that the court decides Scotland does not need to be consulted, Sturgeon will be able to use the impotence of the Scottish parliament as a recruiting tool for independence.
While Sturgeon’s intervention is fascinating, all of the debate surrounding the Brexit result has made me think about something that I never really thought much of in 2014.
It has dawned on me that back then the Scottish independence referendum was also advisory. This means that had the Yes side won, we would probably be in a similar position to the one that the Brexiteers are now in. We would be reliant on Westminster MPs, who might not think Scottish independence is in the interest of the UK, to smoothly legislate for what we voted for.
I should have known this as before the referendum there was a House Of Lords committee set up to look at these issues. The experts who contributed made it clear that the UK parliament would have to legislate to end the Union:
UK legislation to facilitate Scottish secession from the Union may not need to be extensive. Its primary purpose would be to recognise independence for Scotland and the end of the UK Parliament’s legislative competence over Scotland. However, it is likely that extensive consequential legislation, and legislation to implement any agreement reached between the two governments, would be necessary.
Not only that but many experts who contributed also stated that the UKGov would also have to legislate to even allow negotiations to take place. Not least because the break-up of the UK would not be a devolved issue and legislation might have been needed to give the Scottish Government the power to participate. Moreover, the UK and Scottish parliaments may have wanted to oversee things by choosing negotiators, setting remits and demanding oversight.
We can see in the current debate over Brexit that the UK parliament has a lot of power over what is going to happen in the coming months.
It will have a big input into the type of Brexit that happens. It will even have the power to scupper Brexit altogether. Ultimately, it has the sovereignty to frustrate the key goals of those that were behind Brexit as well as interfere with the negotiating strategies of those in charge of delivering it.
Any MP who doesn’t think that Brexit or the proposed version of Brexit is in the best interests of the country as a whole is now empowered to disrupt the process.
After a yes vote in any future independence referendum, Scottish independence supporters may find that their aspirations become similarly frustrated by democracy. If these few months have made me realise anything, it is that winning indyref2 might be the beginning of a long struggle. There is even the possibility a Yes vote might not even result in the break-up of the UK.
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