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The Law & Politics of Brexit$

Federico Fabbrini

Print publication date: 2017

Print ISBN-13: 9780198811763

Published to Oxford Scholarship Online: November 2017

DOI: 10.1093/oso/9780198811763.001.0001

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Brexit and the Scottish Question

Brexit and the Scottish Question

Chapter:
(p.115) 6 Brexit and the Scottish Question
Source:
The Law & Politics of Brexit
Author(s):

Sionaidh Douglas-Scott

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198811763.003.0006

Abstract and Keywords

The chapter examines Brexit and the Scottish question, arguing that the UK secession from the EU may be the trigger for Scotland’s secession from the UK. While Scottish voters had by majority rejected independence in a referendum in 2014, they voted overwhelmingly to remain in the EU during the Brexit referendum. At the same time, as Douglas-Scott explains, efforts by the Scottish government after the Brexit referendum to obtain a special deal to remain within the EU single market have received only scant attention from the UK government. Moreover, new tensions are likely to emerge between Holyrood and Westminster in the implementation of the UK government. EU Withdrawal Bill. Although pursuant to the Sewel Convention Scotland should be consulted on any UK primary Legislation relating to its devolved powers, the UK government does not seem sensitive to the issue—not least because the UKSC in Miller classified constitutional conventions as non-enforceable norms. Given the unsuccessful exhaustion of all these alternative roads to protect Scotland’s interest, the prospect of a new independence referendum gains credibility.

Keywords:   Brexit, Scotland, independence, referendum, UK, devolution, Act of Union

1. Introduction: A Chronicle of Two (or Three?) Referendums

The EU Referendum Act 2015 made provision for a referendum on whether the UK should remain a member of the EU, a commitment included in the 2015 Conservative Party manifesto. On 23 June 2016, 62 per cent of those voting in Scotland voted to remain in the EU, whereas in the UK overall, 51.9 per cent of those voting voted to leave. Overall, Scotland tends to be less Eurosceptic than most of England1 and the Scottish government has expressed opposition to the prospect of leaving the EU. For example, the Scottish government’s 2014 Agenda for EU Reform paper disagreed with the proposed renegotiation of Britain’s EU membership, did not support the subsequent referendum, and argued that EU reform could be delivered without major treaty change.2 In December 2016, six months after the EU Referendum result, the Scottish government published its proposals for a differentiated solution for Scotland, in its Paper, Scotland’s Place in Europe,3 making a case that even in the event of a ‘hard Brexit’ in the rest of the UK, Scotland could retain its single market membership. Such a differentiated solution seems, however, to have been rejected by the UK government and, in March 2017, the Scottish Parliament voted formally to request from the UK government (p.116) the powers to stage a fresh independence vote at around the time Britain leaves the EU.4

Scotland’s role in Brexit has to be seen in the broader context of its relations with the United Kingdom union. On 18 September 2014, in an historic referendum, the Scottish people voted by 55 per cent to 45 per cent to remain in the UK.5 During the independence referendum campaign, the pro-UK, ‘Better Together’ side notably raised the issue of EU membership. They suggested that the only way Scotland’s EU membership would be assured would be by remaining in the UK, and that an independent Scotland’s application for EU membership could take years, with no guarantee of success.6 Thus, in voting against independence, many Scots might have thought they were securing EU membership. This has proved not to be the case. Furthermore, a vote to remain in the UK was also presented as ensuring greater devolution when, immediately before the vote,7 the leaders of the three largest unionist parties (Conservative, Labour, Liberal Democrat) gave a ‘vow’ to the Scottish electorate8 that, in the event of a ‘No’ vote, there would be further devolution of power to Scotland. Shortly thereafter, the Smith Commission produced a report9 recommending a number of areas where power should be devolved. Legislation was introduced to the UK Parliament, which included greater taxing powers for Scotland, as well as provisions supposedly rendering the Scottish Parliament ‘permanent’ and placing the Sewel Convention on a legislative basis,10 and the Scotland Act 2016 became law shortly before the 2016 Scottish Parliament election. However, the issue of ‘repatriation’ of powers following Britain’s EU withdrawal now raises the possible threat of retrenchment of the devolution settlement, which is discussed further below.

Brexit and its convulsions may reinvigorate the cause of Scottish independence. The SNP manifesto for the 2016 Holyrood elections stated that another independence referendum should take place if there were a ‘material change in circumstances’ from the vote in 2014—such as Scotland being removed (p.117) from the EU against its wishes. The SNP regard this as a mandate since they were re-elected in 2016.11 From the time of the EU referendum, while the UK government has been following a UK-wide approach to Brexit which has found little room for the concerns of the devolved nations, Scotland has been accentuating its specific political and legal identity, and First Minister, Nicola Sturgeon, has described the prospect of the country’s removal from the EU as ‘democratically unacceptable’.12

This chapter considers the question of Scotland and Brexit, both from the perspective of Scotland’s relations with the EU and from the standpoint of British constitutional law and the impact of Brexit on the union of Scotland and England. The impact of Brexit raises the stakes for Anglo–Scottish relations and the continuance of the (UK) union generally. In voting to leave one union (the EU), the British people may well find that they are bringing about the end of another, older union (the UK).

2. The EU Referendum

This set the Brexit train in motion. However, the 2015 EU Referendum Act imposed no obligation on the UK government to implement its results—it was a consultative referendum, and indeed, there are no constitutional provisions in the UK requiring the results of a referendum to be implemented. This contrasts with eg Ireland, where the Irish constitution states circumstances in which a binding referendum must be held.

Further, the 2015 Act set no condition of a ‘quadruple lock’ threshold, requiring each constituent part or nation of the UK (England, Scotland, Wales, and Northern Ireland) to vote to leave before the UK can withdraw from the EU. The EU Referendum Act 2015 takes a unitary, UK-wide approach to the vote. This contrasts with the situation in some federal countries. In Australia, for example, referendums to approve changes to the constitution must achieve a majority of voters as a whole, and a majority in a majority of states.13 While the UK Referendum Act was progressing through the House of Commons, the SNP tabled an amendment to require such a double-majority threshold, but were unsuccessful. In the words of Alex Salmond, ‘nations within a multi-national state should be recognised as more than regions, counties or areas (p.118) and should not be counted by population; they are national entities in their own right, and that confers a relationship of respect’.14

The UK government was under no binding obligation to leave the EU as a result of the Referendum, but nonetheless, in March 2017, Theresa May delivered a letter to Brussels formally setting in motion the process for triggering Article 50 of the TEU and the UK’s withdrawal from the EU. Shortly thereafter, the UK government published a White Paper15 on the ‘Great Repeal Bill’, the means by which it intends to repeal the European Communities Act (ECA) 1972 and disentangle EU law from domestic law.

Thus, a first point to note is that it is extremely easy to bring about a major change in the British constitution (namely exit from the EU)—even if that change can be demonstrated to have major and unfortunate consequences for a particular nation of the UK, ie Scotland. Further, as will be elaborated in this chapter, unlike in some federal, and even non-federal states, it seems that as British constitutional law now stands, Scotland has no legal means of contesting an EU exit against the will of the Scottish government and a majority of its voters.

3. Scotland and Europe

An important aspect of Scotland’s EU membership involves access to the single market. The EU is the main destination for Scotland’s international exports, ‘accounting for around 46 per cent of Scotland’s international exports in 2013, value c. £12.9 billion’.16 According to a 2016 report by the Fraser of Allander Institute, Brexit will have a significant negative impact on the Scottish economy, resulting in a GDP down by 2–5 per cent, and employment down by 1–3 per cent, than if the UK remained in the EU.17 Furthermore, EU Common Agricultural Policy (CAP) and regional funding tends to benefit Scotland (and Wales and Northern Ireland) more than it does England. For example, in 2014–2020, Scotland’s projected CAP funding is €4.3 billion.18

(p.119) Indeed, in recent years, the EU has provided a congenial setting for sub-states and regions.19 All UK nations have their own government representation in Brussels and regional ministers may attend EU Council meetings (at the discretion of the UK government).20 Devolved governments have an important role in implementing and applying EU law, which applies in the field of many devolved competences, and, because EU law has permitted differentiated implementations of EU laws such as directives, distinctive approaches to EU agricultural and environmental law have been adopted in the different nations of the UK.21

Therefore it is not surprising that, in its December 2016 paper, Scotland’s Place in Europe, the Scottish government argued for continued single market membership. It stated as its priority, first, continued UK participation in the single market. However, if that could not be maintained for the UK, the paper proposed that Scotland continue to participate in the single market through the EEA, necessitating separate arrangements for Scotland. This paper was produced before the UK government’s February White Paper22 on Brexit, and compares well with it—being much more substantive and detailed in nature, throwing into contrast the UK government’s own rather sparse publication.

Notwithstanding these Scottish aspirations, in her Lancaster House speech23 in January 2017, Theresa May clearly stated that the UK would leave both the single market and the customs union. Therefore, she necessarily rejected at least the first limb of the Scottish government’s suggestions for future EU/UK relations. Further, no mention at all is made in the UK government’s March letter triggering Article 50 of the TEU24 of any particular arrangements for Scotland (although Northern Ireland is singled out as a special case) and it seems that the UK government has rejected the Scottish government’s proposals.25 This leaves very little space for Scotland to protect (p.120) its interests in the context of the withdrawal process, where it is the UK that will do the negotiating.

4. A ‘UK Approach’

It is notable that one of the first actions taken by Theresa May when she became Prime Minister in July 2016 was to visit First Minister Nicola Sturgeon at Bute House in Edinburgh, where May said she would trigger Article 50 only if there were a ‘UK approach and objectives for negotiations’.26 This statement implied cooperation between the devolved administrations and the UK government. May also said that she would consider proposals from the Scottish government on Brexit.

Although foreign policy, which includes relations with the EU, is reserved to the UK government,27 nonetheless, it is too simplistic to state that devolved administrations have no interest in EU matters, given that a large part of EU law relates to devolved competences. Additionally, many areas of EU law fall across the boundaries of devolved and reserved competences.28 There also exists an intra-UK government machinery, which deploys principles (through a Memorandum of Understanding) by which the governments of the UK work together, and there is a specific Concordat on EU policy issues.29 This Concordat provides that the UK government will involve the devolved administrations ‘as directly and fully as possible in decision making on EU matters’, through discussions by way of an institutional forum—the EU formation of the Joint Ministerial Committee, JMC(E). By October 2016, an EU Negotiations configuration (JMC (EN)) had been established, chaired by David Davis, with the aim of discussing the ‘UK approach’ to Brexit promised by the Prime Minister.30 However, since then, the reaction to JMC (EN) meetings from the devolved nations has largely reflected frustration that their views were not being taken into account.

(p.121) All in all, there are reasons to be anxious about Scotland’s place in the Brexit negotiations. The Article 50 letter stresses that: ‘we will negotiate as one United Kingdom, taking due account of the specific interests of every nation and region of the UK as we do so’. However, it is unclear, to say the least, that the UK government gave any meaningful consideration to Scotland’s Place in Europe, dismissing its proposals as ‘not workable’.31 Nor were the contents of the Article 50 notification discussed or shared with the Scottish government prior to its publication.32 Overall, the Prime Minister’s approach to Brexit, insisting on a UK approach, appears to be that of a unitary state. However, the archetype of ‘unitary’ state has been undermined by two decades of devolution in the UK.33

5. Would a Differentiated Solution Be Possible for Scotland?

To date, no guarantee has been given by the UK government to negotiate with the EU for a differentiated solution on Scotland’s behalf. But would such a distinct arrangement for Scotland in any case be workable?

5.1 ‘Reverse Greenland’

For a while, immediately after the 2016 Referendum, the ‘reverse Greenland’ option was floated as a possibility for Scotland. In 1985, Greenland, which is part of Denmark, withdrew from the (then) EEC, although Denmark remained.34 As the EEC treaties at that time contained no provision for the withdrawal either of a Member State or a part thereof, the necessary arrangements had to be negotiated.35 The basis for Greenland’s withdrawal was former Article 236 EEC (now Article 48 TEU). Following withdrawal, Greenland became associated with the EU as an Overseas Country and Territory through the Greenland Treaty.

(p.122) Therefore, it was suggested that the EU treaties might be similarly amended, enabling Scotland to remain a member of the EU, even if England/‘rUK’ were to leave. However, there are obstacles to this. The main issue to be negotiated at the time of Greenland’s departure concerned fishing rights, whereas there are multiple issues of contention in the case of Brexit. Furthermore, the part of Denmark that remains within the EU contains its central government, in Copenhagen. However, if ‘rUK’ were to withdraw and Scotland remain in the EU, the UK’s central government would be located in England.

However, the Greenland case at least provides a precedent. It is possible for only part of a state to secede from the EU. Article 29 of the Vienna Convention on the Law of Treaties provides: ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’.36 This implies it would be possible for a new amendment treaty to redefine which parts of UK territory fall within the scope of EU law. Indeed, when the Federal Republic of Germany enlarged in 1990, (then) EEC Member States accepted that the treaties could apply to its expanded territory without even being specifically amended, thus avoiding the lengthy and risky amendment procedure.

There are also further examples, not of partial secession, but of ways in which diverse parts of a state may have different relationships with the EU. One such example is the Isle of Man and Channel Islands. These are not part of the UK or EU, but possessions of the British crown. Nonetheless, Protocol 3 of the Accession Treaty of the UK to the (then) EEC permits trade for their goods without non-EU tariffs. However, they are excluded from the provisions governing free movement of people.37 Another example is that of Gibraltar, which is a British overseas territory with its own constitution and self-government, except for defence and foreign affairs for which the British government is responsible. Although part of the EU, Gibraltar is outside the customs union and VAT area, exempted from the CAP, and does not form part of Schengen. Gibraltar has no option of cancelling its EU membership separately from the UK, but has stated that it wishes to remain in the EU, notwithstanding the Brexit vote. Yet while the Northern Irish border was mentioned in the letter triggering the UK’s withdrawal under Article 50 of the TEU, Gibraltar was not. On 1 April 2017, a draft document on the EU’s Brexit strategy said no agreement on the EU’s future relationship with the UK (p.123) would apply to Gibraltar without the consent of Spain, giving it a potential veto.38

The present situation of Gibraltar causes concern, but, overall, this survey of partial state membership of the EU illustrates that such complex and differentiated relationships are possible and have been acknowledged by the EU itself.

5.2 Scotland’s place in Europe: single market membership for Scotland?

It is time to turn to the solution proposed in the Scottish Government Paper, Scotland’s Place in Europe. This paper contemplates continued single market membership for Scotland, even in the absence of single market membership for ‘rUK’. The Scottish paper recognizes that this would require some legal engineering. Indeed, it would require at least three major legal changes.

First, there would have to be a change to EFTA and EEA rules to allow in a sub-state such as Scotland (whether as full or associate member or member ‘through’ the UK). Scotland, although a nation in its own right, lacks the external legal competence to enter into treaties on its own behalf—unlike some other sub-state entities, for example, the Belgian regions.39 In traditional international law, the ‘state’ is a formal category, with legal personality, in a way that the region, or sub-state, usually is not.40 It would also be necessary for Scotland to acquire legal personality in its own right.

Secondly, Scotland’s application for EEA membership would depend on ‘UK sponsoring’, as the UK government would have to negotiate this as part of a UK withdrawal treaty. The Scottish Government Paper gives the example of the Faroe Islands, which explored the EEA option under Danish sponsorship. However, this has not yet been achieved. In any case, it is not clear that the political will exists for this purpose in the UK government. The Scottish paper, however, also argues from analogy that, whatever solutions might be (p.124) found for the Irish border (promised by the UK government) should also be applied to relations between Scotland and ‘rUK’.

Thirdly, there would need to be a wider-ranging devolution of powers to Scotland to enable it to comply with single market rules ranging from employment and social policy to product and professional standards, health and safety, consumer protection, and migration. For example, powers over immigration might need to be devolved. Such a transfer of power could not be achieved by the ‘Great Repeal Bill’ but would require separate UK primary legislation, devolving powers to Scotland, and providing it with legal personality and the ability to conclude international agreements in its own right, as well as subsequent Scottish legislation on EU single market matters. So far, there is little evidence that the UK government is contemplating this. For example, although the notion of ‘regional visas’ could also be explored for other parts of the UK,41 devolution of immigration is something Theresa May seems to have ruled out.42

More generally, there are issues with a differentiated settlement for Scotland that require, in the words of the Scottish government, some legal ‘engineering’. Scotland’s Place in Europe suggests that Scotland would remain in a customs union with ‘rUK’, so that the internal border between Scotland and rUK would not be a customs border, thus avoiding the potential problems facing the island of Ireland. However, it would still be necessary to distinguish Scottish exports to the EU from ‘rUK’ exports, which would need to pay EU tariffs. The situation would be more complicated still with non-tariff barriers, as the situation of ‘rUK’ goods which are non-compliant with EU standards reveals. These could be sold in Scotland under what the paper terms ‘parallel marketability’43 but not to other EEA countries. However, there would be a need for some system to ensure these goods were not then exported to the EU, thus circumventing EU rules.

In any case, no mention is made in the Article 50 letter of any particular arrangements for Scotland, which leaves one wondering where Scotland’s proposals stand. Presumably this means the UK government has rejected the Scottish government’s proposals. This leaves very little space for Scotland to protect its interests in the context of the withdrawal process, where it is the UK that will do the negotiating—a feature that will certainly have consequences, as discussed further below.

(p.125) 6. EU Withdrawal Bill[‘Great Repeal Bill’]

In March 2017, the UK government also produced a White Paper on the ‘Great Repeal Bill’.44 In July 2017, this Bill was published and renamed the EU (Withdrawal) Bill (EU(W)B),45 although many in the media continue to refer to it as ‘Great Repeal’ or ‘Repeal’ Bill. This Bill has three main tasks. First, it is intended to remove the European Communities Act 1972 (ECA) from the statute book following completion of Brexit negotiations—hence the ‘repeal’ terminology. However, secondly, the Bill will also conserve, for it will convert EU law (as it stands at the moment of exit) into UK law. Otherwise, given the many EU provisions currently applicable in the UK, there would be a risk of huge gaps in national law on exit day. Thirdly, the Bill will make provision for ex-EU legislation to be amended or repealed by secondary legislation.

However, the EU(W)B is liable to provoke devolved administrations in Edinburgh, Cardiff and Belfast, at a time when the union of the United Kingdom is already fragile. As stated, an aim of the Bill is to convert EU law into national law. However, a good part of EU law relates to competences that have been devolved—for Scotland this includes agriculture, fishing within Scottish waters, and environmental law.46 If the EU(W)B translates such matters into UK law this would amount to legislation on devolved areas—a contentious issue that would require the formal legislative consent of the Scottish Parliament.

The issue of the EU(W)B thus raises several specific issues for Scotland that will be dealt with in turn, namely: the issue of repatriation of competences from Brussels (and their financing); the question of whether further powers should be devolved to Scotland in the event of a differentiated Brexit deal; the necessity of legislative consent (invoking the Sewel Convention) in this context; and the utilization of secondary legislation to effectuate power transfers post Brexit to the detriment of Scotland.

(p.126) Unfortunately, given its considerable implications for devolution, the ‘Great Repeal Bill’ White Paper devoted very little space to it—just six short paragraphs. The EU(W)B itself, together with its Explanatory notes, adds little that would please the devolved nations. Indeed, the White Paper’s dominant theme was the need to ensure stability and consistency across the UK, rather than any meaningful focus on the devolution settlement. This approach appears to have been carried over into the Bill itself.

6.1 Repatriation of competences

The Brexit process is intended to remove the limits and checks that EU law places on national legislation, ensuring that competences will be returned or ‘repatriated’47 to the UK. However, there is a question mark over how these powers will be repatriated and whether this will impact on devolved powers. The UK government’s view is that, even in the case of devolved powers such as agriculture and the environment, the ‘repatriation’ process will first ‘return’ them to Westminster and then decisions will be made as to where they should go from there: ‘as the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues’.48 This is the approach taken in the EU(W)B. Clause 11 of the EU(W)B amends devolution legislation, so modification of retained EU law will fall outside devolved competence. Section 29 of the Scotland Act 1998 is to be amended to this effect. Thus, clause 11 freezes devolved competence on the day the UK exits the EU and repatriated powers will flow, at first instance, back to London.

The view of the Scottish government, in contrast, is that competences that are not reserved are not being ‘repatriated’, because they are already located within the devolved sphere, although regulated by constraints on their use.49 Devolved policy fields should automatically revert to Scotland unless explicit legislation is adopted to change this.50Scotland’s Place in Europe signalled that Scotland would resist attempts to reserve repatriated competences such as agriculture, fisheries, education, health, justice, and environmental protection.51 (p.127) On the day the EU(W)B was given its first reading, 13 July 2017, the First Ministers of Scotland and Wales issued a joint statement, describing the Bill as: ‘[a]‌ naked power-grab, an attack on the founding principles of devolution and could destabilise our economies’.52

Increasing the power of the UK government would also undermine the vow made before the 2014 independence referendum and the recommendations of the Smith Commission—which were for considerably more devolution, not less.

The UK government has indicated that no ‘decisions’53 currently taken by devolved institutions will be removed, and this was reiterated in the Prime Minister’s letter triggering Article 50. However, it might be argued that ‘decisions’ (as opposed to implementation) on eg agriculture are currently taken by European institutions, and not by devolved institutions. Although the ‘Great Repeal Bill’ White Paper envisages that ‘the outcome of the withdrawal process will be a significant increase in the decision making power of each devolved administration’,54 it also states: ‘As powers are repatriated from the EU, it will be important to ensure that stability and certainty is not compromised, and that the effective functioning of the UK single market is maintained’.55 The later Factsheet on Devolution, published by the Department for Exiting the EU on the day the EU(W)B was published states that: ‘As powers are repatriated from the EU, our guiding principle is that no new barriers to living and doing business within our own union are created when we leave the EU. We will therefore need to examine these powers carefully to determine the level best placed to take decisions on these issues’.56

Indeed, the Great Repeal Bill White Paper stated that it will ‘replicate the current frameworks provided by EU rules through UK legislation’.57 This is reiterated in the ‘Devolution Factsheet’ published with the Bill. This has been described as a ‘holding pattern’58 which would continue until it is decided whether a UK-wide framework is appropriate. According to the ‘Devolution Factsheet’, there ‘will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with devolved authorities on where lasting common frameworks are or are not needed’, although it does not clarify what format these discussions will take, nor whether it is (p.128) the UK government that will take the final decision. It does, however, state that: ‘Where it is determined that a common approach is not required, the Bill provides a power to lift the limit on devolved competence in that area’.59 Clause 11 of the EU(W)B states that it will be possible, by Order-in-Council, to specify that the prohibition on modifying retained EU law does not apply regarding certain matters.

However, it is unclear what the UK government means by ‘frameworks’. Such ‘frameworks’ could take the form of Westminster statutes, or new transversal regulations to secure the UK single market, or simply intensified intergovernmental cooperation. However, given present dissatisfaction with the JMC as an institution for securing intergovernmental cooperation, it seems unlikely that frameworks based on UK legislation and JMC cooperation would satisfy the Scottish government.

In any event, any adjustments to the devolution settlement would require the consent of the Scottish Parliament and use of a legislative consent motion (LCM) (Sewel) and are discussed below.

6.2 UK internal market

To date, EU law has set constraints so that its Member States have to legislate in compliance with the EU internal market. However, once the UK exits the EU, these EU structures and legal constraints will no longer exist. Yet, in the absence of EU common principles, barriers to trade within the UK may materialize. As mentioned, both the Great Repeal Bill White Paper and the Factsheets published with the EU(W)B argue for national ‘common frameworks’. Furthermore, policy harmonization might also be needed to comply with WTO rules and any trade deal the UK might sign with the EU or other parties.

The problem is that UK devolution took place within the structures of the larger EU internal market, so it was not necessary to provide a detailed framework for a UK internal market. Prior to the UK’s accession to the (then) EEC, the 1973 Kilbrandon Report on the constitution was able to state that ‘the UK is a unitary state in economic terms … It has, for example, a single currency and a banking system responsible to a single central bank. Its people enjoy a right of freedom of movement of trade, labour and capital and of settlement and establishment anywhere within the UK’.60

(p.129) Now the position is somewhat different, and the UK is no longer a unitary state (at least from the perspective of the devolved nations) and instead more ‘multi-layered’.61 Federal and other non-unitary states have had to make provision to ensure policy harmonization or prevent barriers to trade. For example, the US has its commerce clause, which states that the United States Congress shall have power ‘to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’.62 Article 73(1)(5) of the German constitution states that: ‘The Federation shall have exclusive legislative power with respect to: … the unity of the customs and trading area, treaties regarding commerce and navigation, the free movement of goods, and the exchange of goods and payments with foreign countries, including customs and border protection’. According to Anderson, ‘there is always a judgment about the relative priority—and even legitimacy—to be assigned to the objective of an integrated internal market versus other objectives’.63

It is difficult to determine what the UK government has in mind—whether it plans to set up some new intra-governmental machinery or to legislate to put in place UK-wide free movement principles which courts could enforce. However, whatever the mechanism, the UK government will need to act with attention to the devolutionary settlement and the Sewel Convention.

6.3 Finances

However, even if former EU competences flow to devolved levels, their financing will not automatically do so. Post-Brexit, the UK’s contributions to the EU will revert to the UK Treasury, and therefore some mechanism will be needed to distribute it across the UK. Scotland, unlike Wales and Northern Ireland, is a net contributor to the EU. However, Scotland does benefit more than England from funding in three main spending areas of agricultural policy, structural funds, and research.64

What will happen to this funding post-Brexit? There are three possible models for future funding. First, it could be needs-based, resulting in different levels of funding in different parts of the UK, essentially following the present EU model for agriculture and structural funds. However, agreeing (p.130) the definition and measurement of need could be difficult given the differing conditions across the UK. Secondly, funding could be distributed on a population basis, which would allocate funding on an equal per capita basis, to the detriment of Scotland in agriculture, where its funding exceeds its share of population. Finally, present spending levels could be incorporated into the Barnett Formula. In such a system, Scotland would keep its existing levels of spending but adjustments in future years would be based on changes in English spending in those fields. This would expose Scotland to changes made in English expenditure levels, for example a decision to reduce regional development spending or agricultural support.

6.4 Secondary Legislation

The prospect of a ‘Great Repeal Bill’ caused further alarm in Scotland when a report authored by Professor Alan Page65 suggested that many laws affecting devolved issues could be unilaterally scrapped by Westminster as a consequence of Brexit, because secondary legislation could be used to unpick former EU laws. However, because brought about by secondary legislation, such changes would not require the consent—or even the knowledge—of the Scottish Parliament.

Clearly, secondary legislation will be used in the Brexit process. The UK White Paper explained that the ‘Great Repeal Bill’ will provide a power to correct the UK statute book using secondary legislation, and Clauses 7–9 of the EU(W)B itself provide that power. Clause 10 and Schedule 2 confer powers on devolved administrations for similar purposes, although subject to exceptions. Westminster simply will not have enough time to issue primary legislation to manage the manifold repeals or amendments of EU law necessary, so much of this will fall to the executive, using powers delegated to it by the EU(W)B. The problem is that Parliament has a minimal role in secondary legislation. Indeed, it is clear that the EU(W)B will include a ‘Henry VIII’ clause, namely a provision that enables primary legislation to be amended or repealed by secondary legislation, hardly a means for Parliament to ‘take back control’, given that they permit ministers to override existing legislation.

However, the situation is more critical for Scotland. As Page writes: ‘The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas’.66

(p.131) There is thus a sizeable potential gap in the architecture of the Scottish Parliament’s control over UK law-making in devolved areas. In October 2016, the Secretary of State for Scotland, David Mundell, gave evidence to the Scottish Parliament’s Culture, Tourism, Europe, and External Relations Committee. When asked about the possibility of former EU laws falling within Scotland’s devolved competence being repealed by secondary legislation in the UK Parliament, he gave the undertaking that ‘no laws will be changed of the type that you refer to without consultation with this Parliament’.67 It remains to be seen whether the UK government will hold good to this undertaking—unfortunately, the EU(W)B, and particularly the extraordinarily broad clause 7, lacks clarity here.

7. Legislative Consent

Under section 28(7) of the Scotland Act 1998, the UK Parliament, as a sovereign legislature, retains the power to make or unmake any law for Scotland whatever. However, under the ‘Sewel convention’, legislative consent of the Scottish Parliament would be needed when Westminster legislation touches on devolved matters. This requires a LCM. Indeed, the UK government’s Devolution Guidance Note 10 states that a Bill requiring Scottish parliamentary consent under the Sewel Convention is one which ‘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’.68

As the term suggests, the ‘Sewel Convention’, as a constitutional convention, takes the form of a political as opposed to a legally binding undertaking. However, as part of the post-independence referendum ‘vow’ on entrenching Holyrood’s powers, section 2 of the Scotland Act 2016 inserted a new subsection (8) into section 28 of the Scotland Act 1998, giving statutory recognition to the Convention in the following form: ‘But 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’. To many, this looked to be a legal right for Holyrood to refuse consent to changes to its powers and renders its status as a ‘mere’ convention somewhat less clear.

(p.132) Nonetheless, in the Miller case,69 the Supreme Court unanimously held that constitutional conventions are political in nature, and not enforceable by the courts.70 As much of the famously uncodified British constitution rests on such conventions, this means that a great deal of it is legally unenforceable. The Court held that judges can recognize the operation of convention in the context of deciding a legal question71 but they cannot give legal rulings on its operation or scope.

Indeed, the Supreme Court in Miller went further. It considered the provisions in the Scotland Act 2016 that supposedly put the Sewel Convention on a statutory basis. However, the Supreme Court found that embodying the Convention in law does not in fact turn it into law but rather ‘entrench it as a convention’. According to the Court, this had the consequence that while Sewel ‘has an important role in facilitating harmonious relationships’ between Westminster and devolved administrations, it was not for courts to ‘police’ its operation.72

Yet for the Supreme Court to hold that the Sewel Convention has no legal force is disputable. For a start, there exist precedents in which courts have ruled on operation of conventions (eg the Evans case73). Further, surely giving statutory recognition to Sewel in the 2016 Scotland Act amounts to more than a merely symbolic effect? Indeed, the notion of an ‘entrenched convention’ is bewildering if it adds nothing to the ability to enforce it, and certainly provocative in the context of the current fragile state of UK–Scottish constitutional affairs.

The status of Sewel is highly salient because, unlike in the context of the Miller litigation, which concerned who could lawfully trigger Article 50 of the TEU, it is likely that the EU(W)B will require the legislative consent of the Scottish Parliament. This is because it will enact into UK law parts of the EU acquis that are currently devolved (eg agriculture or environment) and may also modify the powers of devolved legislatures, which are currently unable to legislate contrary to EU law. The UK Government Scottish Secretary, David Mundell, suggested that legislative consent would be needed for the Great Repeal Bill, but there was no mention of this in the UK government White Paper on the ‘Great Repeal Bill’. More recently, however, David Davis confirmed that legislative consent motions would be sought on the Repeal (p.133) Bill74 and the UK government’s Explanatory Notes on the EU(W)B clearly state that it will seek legislative consent on the Bill.75

At the very least, it may be argued that the express inclusion of the Sewel Convention in the Scotland Act 2016 makes it impossible to ignore politically. To be sure, the provision is that Westminster will not ‘normally’ invade devolved competences without their consent, and much has been made of this. But if ‘normally’ simply means the UK government’s stipulated interpretation of the term, then the provision is pointless. LCMs only make sense if they go beyond trifling and commonplace issues. If the UK government ignores Sewel, then devolution loses its point.

So clearly, there are very considerable implications for devolution. What would happen if Westminster ignored constitutional practice and enacted the ‘EU Withdrawal Bill’ without the consent of the Scottish Parliament? There exist precedents in which the Welsh Assembly has refused consent to UK legislation, but in which the UK government pressed on regardless, and the Welsh Assembly also enacted its own legislation. The Welsh legislation was challenged in the UK Supreme Court (being a non-sovereign legislature this is possible) and, in the 2014 case, In re Agricultural Sector (Wales) Bill, the Welsh legislation was upheld.76 A direct challenge to an ‘EU Withdrawal Act’ would be unlikely to succeed due to the doctrine of parliamentary sovereignty, as such an Act would of course be primary legislation. Article IX of the Bill of Rights Act operates to prevent proceedings in Parliament from being questioned in the courts. In Pickin v British Railways Board77 it was held that an Act of Parliament must be accepted as conclusively valid by the courts, even if there is some evidence that it was brought about by deception.

7.1 Continuation Bills?

However, suppose the Scottish Parliament legislated its own ‘Great Continuation Act’, affirming the continuation in Scottish law of all areas previously a matter of EU law that fell within its devolved competence? What constitutional objection could there be to the Scottish Parliament legislating within its own devolved competences? Indeed, the Welsh Assembly debated a motion on the question of a Welsh Continuation Bill shortly after the ‘Great Repeal Bill’ White Paper was published.78

(p.134) Such a Bill might have several purposes. First, Scotland could resolve to act in compliance with EU law in any future legislation it adopted within the scope of devolved competences.79 There might be a question of why Scotland might wish to shadow EU law and so curtail its legislative competence—however, as Scotland has to date had to act within the confines of EU law, this would not mean a massive change of circumstances.

But there might be reasons why Scotland would wish to continue to comply with EU law within devolved competences—the desire for future EU membership of a possible independent Scotland might be one example. Scotland also might wish to continue to attract high-calibre students from the EU to foster migration and free movement and eschew any raising of fee income in this way. Other areas of EU law might in any case prove attractive on their own account. For example, the EU Charter might be continued to apply to matters within devolved scope. This might be perceived as attractive in terms of adherence to a more progressive, up to date Bill of Rights than the European Convention on Human Rights (ECHR).

Secondly, a Continuation Bill could target the UK government’s intention to introduce UK-wide frameworks, setting out possible procedures for Scottish Parliament or government participation in UK-wide frameworks. A Scottish Bill could, for example, provide that the Scottish Parliament/Government must be consulted and give its consent where any UK-wide frameworks (including legislation or more informal provisions) are introduced that are deemed necessary for the realization of a UK single market, where those frameworks have any impact on a devolved competence.

Thirdly, a Continuation Bill could address the impact of delegated legislation. It could give detail on procedures that could be required in devolved Parliaments where delegated legislation impacts on devolved matters, thus dealing with the risks highlighted in the Page report.

Subsequent UK legislation could, of course, as a consequence of Westminster sovereignty, override such Continuations Acts. However, if this were the case, it would further debilitate the UK’s fragile territorial constitution and risk constitutional crisis.

(p.135) 8. A Contested Constitution

The Article 50 withdrawal letter delivered in March 2017 stressed that: ‘we will negotiate as one United Kingdom, taking due account of the specific interests of every nation and region of the UK as we do so’. However, it is unclear that the UK government is taking due account of the devolved nations’ interests. No mention at all is made in the Article 50 letter of any particular arrangements for Scotland, nor of the Scottish government’s proposals in Scotland’s Place in Europe. How then could Scotland protect its interests in the context of the withdrawal process, where it is the UK that will do the negotiating, if the UK government has no plan to argue on Scotland’s behalf? As already discussed, the JMC (EN) has proved deeply frustrating to devolved ministers.

This lack of any formal voice for Scotland in the withdrawal negotiations reveals not only the frustrations of the Brexit process, but also of devolution more generally. It also reveals radically different views of the nature of the British constitution.

From the perspective of the UK government, the British constitution is unitary in nature, possessing certain key elements: foreign affairs are reserved to the UK government, and this includes EU membership. This view approaches the devolved nations as lacking legal rights in this area, at most to be consulted as matter of courtesy.

But there exists a contrasting view of the constitution, held by many in devolved nations and some in England. This alternative approach views the UK as a union founded on treaties (Treaty of Union 1706, Good Friday Agreement) and reliant on ongoing consent. This alternative interpretation of the British constitution also recognizes that the UK has been transformed by external developments and memberships (such as of the EU and Council of Europe) and recalibrated internally by devolution arrangements since 1998 (but also by the Human Rights Act, and a desire for a more principled constitutional development than parliamentary sovereignty allows). As well as enshrining the Sewel Convention in law, the Scotland Act 2016 declared the permanence of the Scottish Parliament, a provision which, if it is to have any meaning, flies in the face of orthodox constitutional law’s assertion of parliamentary sovereignty. We also see a concept of the decentralized and fragmented state at work in Northern Ireland, where the Good Friday Agreement sets out complex provisions regarding cross-community consent, self-determination, and also a role for the Republic of Ireland (and the EU).

However, in spite of Lady Hale’s comment that ‘The United Kingdom has indeed become a federal state with a Constitution regulating the relationships (p.136) between the federal centre and the component parts’,80 the UK is neither federal nor unitary. The UK is not federal in the sense of having legally guaranteed powers granted to the devolved authorities.81 Various alternative descriptions have been applied to the UK—‘union state’, ‘state of unions’, ‘quasi federal’.82 Yet, given the somewhat ad hoc way in which devolution has developed to date, there has been no attempt to address Britain’s constitutional status in a more principled way. Brexit brings these issues into sharp focus, without however suggesting any solution, other than the imposition of a resolute parliamentary sovereignty. There is little evidence that Brexit will provide a ‘constitutional moment’ in which a common solution will be found to these constitutional conundrums. It is unlikely that a federal UK or written constitution will emerge, however much new constitutional arrangements are needed to deal with Brexit. Advocates of Scottish independence, or a united Ireland, have little enthusiasm for an arrangement that would entrench them in the UK, even if it provided authoritative procedures protecting different national communities within the state. And those satisfied with Brexit are unlikely to desire a written constitution or federal option, given that a desire for strong parliamentary sovereignty motivated their Euroscepticism in the first place. Such distinct political identities militate against a comprehensive approach that could enable the British constitution to deal with issues of disputed authority and challenges of Brexit.

At present, intergovernmental relations between the UK government and Scotland seem at a low point.83 Part of the problem is that, although the UK has decentralized to a certain extent, it has almost no legal, and little constitutional, machinery for determining conflicts between the centre and devolved governments. The JMC is not a decision-making body and has proved unequal to the task of providing an effective UK intergovernmental machinery.84 What then is the point of devolution? Why take the trouble (p.137) to establish devolved institutions, yet give them so little power in the UK constitutional order?

The push for Scottish independence was not inevitable in the Brexit context. Indeed, the active pursuit of other options: the formation of the Standing Council on Europe to advise the Scottish government, the creation of a Scottish Brexit Minister Michael Russell, and the Scotland’s Place in Europe options paper, published before any UK government White Paper, illustrate this. Likewise, what appears to be a shift from a demand to continue Scotland’s EU membership to a less ambitions focus on maintaining single market membership indicate a willingness to take pragmatic steps, and compromise if necessary.

Which view of the British constitution will prevail, and will the British constitution, and indeed the union, survive the Brexit process? In On Fantasy Island, Conor Gearty writes that: ‘the problem when political fantasy collides with legal facts is that fantasy can never win’. Perhaps many aspirations for Brexit will be revealed as political fantasy when confronted with the legal challenges of withdrawal under Article 50 and the complexities of the ‘Great Repeal Bill’ (or Bills)?

However, what are the ‘legal facts’ here? The British constitution, let alone its constitutional law, does not provide determinate answers to many of the questions posed by Brexit. We might argue this is unsurprising, that Brexit is an extraordinary event, constitutionally unforeseeable, introducing a potential new revolution into UK law and society. Yet the British constitution has long been vaunted for its adaptability and its ability to cope with new circumstances (the loss of empire, major world wars, and so on) and for its flexibility and enduring nature. However, the challenges of Brexit reveal the constitution’s 21st century weaknesses. An event as momentous as a British withdrawal from the EU requires clear and principled constitutional law as a guide But we do not have that. As the late Lord Bingham put it, commenting on the UK’s lack of a codified constitution: ‘constitutionally speaking, we now find ourselves in a trackless desert without map or compass’.85 How Scotland will face this challenge remains to be seen. (p.138)

Notes:

(1) Although we should not forget London, and some other English cities, that buck England’s Eurosceptic trend; see eg T Oliver, ‘Londoners Are Not Little Englanders’ (2014) British Policy and Politics Blog.

(2) Scottish Government, Scotland’s Agenda for EU Reformhttp://www.gov.scot/Publications/2014/08/5067/0.

(3) Scottish Government, Scotland’s Place in Europe (December 2016) www.gov.scot/Resource/0051/00512073.pdf.

(4) ‘Scottish Parliament backs referendum call’ BBC News (28 March 2017).

(5) This followed the election of an SNP government in 2011, with an overall parliamentary majority, with a manifesto commitment to hold a referendum on independence.

(6) See further on this S Douglas-Scott, ‘Scotland, Secession and the EU’ in A McHarg, T Mullen, and N Walker (eds), The Scottish Independence Referendum: Constitutional and Political Implications (OUP 2016).

(7) When a You Gov poll suggested that Scots might actually vote for independence; see ‘Scottish Independence: Poll Shows Yes Side in the Lead’ The Guardian (7 September 2014).

(8) Published on the front page of the Daily Record (Scotland’s highest circulating newspaper).

(9) The Smith Commission, Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament (27 November 2014).

(10) Scotland Act 2016, s 2.

(11) Albeit as a minority government, with support from the Green Party.

(12) ‘Brexit: Scotland Leaving EU is “Democratically Unacceptable’, says Nicola Sturgeon’ The Independent (24 June 2016).

(13) Constitution of Australia, s 128.

(14) Alex Salmond, HC Debate 16 June 2015, col 192.

(15) Department for Exiting the European Union, Legislating for the United Kingdom’s Withdrawal from the European Union, Cm 9446 (March 2017).

(16) House of Commons Briefing 7213, ‘Exiting the EU: Impact in Key UK Policy Areas’, (4 June 2015).

(17) Fraser of Allander Institute, ‘Long-term Economic Implications of Brexit: A Report for the Scottish Parliament’ (October 2016) https://www.sbs.strath.ac.uk/economics/fraser/20161006/Long-term-Economic-Implications-of-Brexit.pdf.

(18) House of Commons Briefing 7213 (4 June 2015).

(19) The EU’s relationship with regional governments has evolved, partly in response to claims of Belgian regions and German Länder; see eg C Panara and A De Becker (eds), The Role of the Regions in EU Governance (Springer 2010).

(20) See TFEU, Article 16.

(21) See eg J Hunt, ‘Devolution and Differentiation: Regional Variation in EU Law (2010) 30 Legal Studies 421.

(22) Department for Exiting the European Union: The United Kingdom’s Exit from and New Partnership with the European Union, Cm 9417 (2 February 2017).

(23) ‘The Government’s Negotiating Objectives for Exiting the EU’ PM speech (17 January 2017  https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech.

(25) ‘Article 50 a Leap in the Dark—Sturgeon’ BBC News (29 March 2017).

(26) See ‘Brexit: PM is “Willing to Listen to Options” on Scotland’, BBC News (15 July 2016).

(27) Foreign policy is a reserved matter under Scotland Act 1998, Schedule 5.

(28) For example, issues relating to the free movement of persons and immigration, which is reserved, may impact on health policy, which is devolved.

(29) Cabinet Office, Memorandum of Understanding and Supplementary Agreements (October 2013) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf.

(30) See further Cabinet Office, Joint Ministerial Committee communiqué (24 October 2016) https://www.gov.uk/government/publications/joint-ministerial-committee-communique-24-october-2016).

(31) ‘Article 50 a Leap in the Dark—Sturgeon’ (n 25).

(33) See eg R Hazell and R Rawlings, Devolution, Law Making and the Constitution (Imprint Academic 2005); J Mitchell, Devolution in the UK (Manchester University Press 2009); V Bogdanor, The New British Constitution (Hart Publishing 2009).

(34) This took a considerable time—3 years. See further on the Greenland case eg F Weiss, ‘Greenland’s Withdrawal from the European Communities’ (1985) European Law Review 173; also, M Nash, ‘Could Britain Leave the European Union? The Greenland Option’ (1996) 46 New Law Journal 6752.

(35) See on this eg Status of Greenland: Commission Opinion COM (83) 66 final (2 February 1983) 12.

(36) See further eg O Dörr and K Schmalenbach (eds), The Vienna Convention on the Law of Treaties: A Commentary (Springer 2012).

(37) Their relationship with the EU generally is set out under TFEU, Article 355(5)(c), and Protocol 3 of the Act of Accession, annexed to the Treaty of Accession 1972.

(38) ‘Brexit: Gibraltar Angered by Spain’s EU “veto” ’, BBC News (1 April 2017).

(39) See eg D Criekemans (ed), Regional Substate Diplomacy Today (Martinus Nijhoff 2010).

(40) See eg Montevideo Convention on Rights and Duties of States 1933, Article 1. As with the EU (Article 49 TEU), under UN Charter Article 4, only ‘States’ can be admitted to UN membership. However, the PCIJ analysis in the Western Sahara case is a good example of the clash between the classical concept of statehood and other cultural concepts of control over territory (ICJ Reports (1975) 10); see also R Portman, Legal Personality in International Law (CUP 2013); M Koskeniemmi, ‘The Future of Statehood’ (1991) 32 Harvard Journal of International Law 397; H Michelmann and P Soldatos (eds), Federalism and International Relations: the Role of Subnational Units (OUP 1990); C Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International-Law?’ (1993) 4 European Journal of International Law 447.

(41) Price Waterhouse Cooper, Regional Visas – A Unique Immigration Solution, (October 2016) prepared for the City of London Corporation.

(42) ‘Theresa May rules out Scots deal on immigration despite warnings’, The Herald (5 February 2017).

(43) Scotland’s Place in Europe (n 3) para 152.

(44) Legislating for the United Kingdom’s Withdrawal from the European Union Cm 9446 (March 2017).

(45) EU (Withdrawal) Bill (HC Bill 05). Explanatory notes to the Bill, prepared by the Department for Exiting the European Union, are published separately as Bill 5—EN.

(46) According to the EU’s Committee of the Regions, around 70% of EU legislation must be implemented by local or regional authorities; Committee of the Regions, A New Treaty: A New Role for Regional and Local Authorities (Brussels 2009). However, in a paper produced for the Scottish Parliament, Professor Alan Page suggested that many existing EU competences are currently reserved to the UK Parliament. See A Page, ‘The Implications of EU Withdrawal for the Devolution Settlement’ (2016).

(47) The word used in the ‘Great Repeal Bill’ White Paper at 4.3.

(48) The United Kingdom’s Exit From, and New Partnership With, the European Union White Paper Cm 9417 (February 2017) para 3.5.

(49) Scotland’s Place in Europe (n 3) 4.

(50) Interestingly, this view was shared by the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, para 130: ‘The removal of EU constraints on withdrawal from the EU Treaties will alter the competence of devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance devolved competence’.

(51) Scotland’s Place in Europe (n 3) 2, 4, 40.

(52) See Joint Statement of First Minister of Scotland Nicola Sturgeon and First Minister of Wales Carwyn Jones on EU (Withdrawal Bill) 13/07/2017 https://news.gov.scot/news/eu-withdrawal-bill.

(53) ‘The Government’s Negotiating Objectives for Exiting The EU’ PM Speech (17 January 2017).

(54) Legislating for the United Kingdom’s Withdrawal from the European Union (n 15) 8, 28.

(55) ibid 27.

(56) Department for Exiting the EU, ‘Factsheet 5 Devolution’.

(57) ibid 27 para 4.4.

(58) According to Alun Cairns, Welsh Secretary see ‘Brexit “Holding Pattern” for EU Laws in Great Repeal Bill’ BBC News (30 March 2017).

(59) Factsheet 5,

(60) Royal Commission on the Constitution 1969–1973, vol 1 Report (HMSO 1973) (Cmnd 5460) para 57.

(61) See eg N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Hart Publishing 2003).

(62) United States Constitution (Article I, Section 8, Clause 3).

(63) G Anderson (ed), Internal Markets and Multi-level Governance: The Experience of the European Union, Australia, Canada, Switzerland and the United States (OUP 2012) 1.

(64) A Greer, The European Referendum, Agriculture, Food and Rural Policy Issues (Royal Society of Edinburgh 2016); SPERI Political Economy Research Brief No 24, UK Regions and European Structural and Investment Funds (University of Sheffield 2016).

(65) See Page (n 45).

(66) ibid 6.

(67) Official Report, Culture, Tourism, European, and External Relations Committee (27 October 2016) 12http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10584&mode=pdf.

(68) Cabinet Office, ‘Devolution Guidance Note 10: Post-Devolution Primary Legislation Affecting Scotland’ (23 August 2011) para 4 (emphasis added).

(69) R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

(70) To be clear, the Court did not hold that legislative consent of the devolved nations would not be required at all, as some reports of the case suggested; rather, that they could not be enforced legally.

(71) As in Attorney-General v Jonathan Cape Ltd [1976] QB 752.

(72) See Miller (n 49) para 151.

(73) R (Evans) v Attorney-General [2015] UKSC 21.

(74) ‘Brexit: Devolved institutions’ consent sought on Repeal Bill’ BBC News (28 June 2017).

(75) EU (Withdrawal) Bill Explanatory Notes, para 69.

(76) Reference by the Attorney General for England and Wales [2014] UKSC 43.

(77) Pickin v British Railways Board [1974] AC 765.

(78) National Assembly for Wales: Plenary (4 April 2017) Motion NND 6289.

(79) It might seem strange if the law of a treaty that no longer bound the UK was still observed under the devolution settlement. But there are precedents for voluntary compliance with treaties by non-contracting parties. For example, the EU in Article 6 of the TEU declares that: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’.

(80) Lady Hale, ‘The Supreme Court in the UK Constitution’ Legal Wales Lecture (12 October 2012).

(81) See eg W Riker, Federalism: Origin, Operation, Significance (Little, Brown 1964); D Elazar, Exploring Federalism (University of Alabama Press 1987).

(82) See eg S Rokkan and D Unwin, ‘Introduction: Centres and Peripheries in Western Europe’ in S Rokkan and D Unwin (eds), The Politics of Territorial Identity (Sage 1982); M Keating, ‘Reforging the Union: Devolution and Constitutional Change in the United Kingdom’ (1998) 28 Publius: The Journal of Federalism 217; Mitchell, Devolution in the UK (n 33).

(83) See eg ‘Theresa May and Nicola Sturgeon Meet Ahead of Article 50’ BBC News (27 March 2017).

(84) N McEwen and W Swenden, ‘Between Autonomy and Interdependence: The Challenges of Shared Rule after the Scottish Referendum (2015) 86 Political Quarterly 192; House of Lords, Select Committee on the Constitution, Intergovernmental Relations in the United Kingdom (HL Paper 146, 11th Report of Session 2014–2015) ch 2.

(85) Tom Bingham, Lives in the Law (OUP 2011) ch 6.