Lord Reed and Lord Hodge, as the judges most acquainted with Scots law, have taken the lead in seeking to probe Lord Advocate James Woolfe’s submissions.
The Lord Advocate’s submissions include the argument that a legislative consent motion on the part of Holyrood is appropriate in the current instance partly because it was used in the recent amendment of the competence of the Scottish Parliament in, for example, the Scotland Act 2012 (which primarily addressed Holyrood’s powers regarding taxation) and the Scotland Act 2016 which implemented further powers as a result of considerations arising ahead of the Scottish Independence Referendum. Consequently, the Lord Advocate is arguing that the current Article 50 situation, being analogous in impact to those legislative changes, also requires a legislative consent motion. By drawing on judicial contemplation of a similar scenario in Canada his argument certainly gains strength.
It may be, however, that the UK Supreme Court will view the matter of requiring a legislative consent motion in the context of the current Article 50 trigger as different.
The justices could consider that the foreign affairs context makes it a matter distinctive to the previous legislative amendments noted by the Lord Advocate because the previous uses of the legislative consent motion arose in the context of internal, legislative, change. By contrast, the Article 50 context is ‘external’ – it links to principles of constitutional law beyond internal legislative change.
Though Brexit will impact significantly on Holyrood’s legislative competence (actually disburdening the legislative constraints upon the Scottish Parliament by removing for instance s.29(2)(d) requiring Holyrood legislation to be compatible with EU law) it is of an order distinguishable from the internal legislative changes that have involved use of a legislative consent motion. That would mean that the justices could hold that there is no requirement for a legislative consent motion in this instance.
Comments
Summary by Lord Keen QC Advocate General Scotland
Lord Keen respectfully argued that the Lord Advocate had conflated the legislative consent motion with broader mechanisms for consultation between the parliaments. Instead, argued the Advocate General, legislative consent motions are a distinguishable element of inter-parliamentary communication - separate from eg a memorandum of understanding or dialogue between the parliaments
The Sewel Convention could not, in the Advocate General’s view, be considered to be a necessary condition for the proper triggering of Article 50. Use of a legislative consent motion (an essentially political mechanism) was non-justiciable.
Lord Sumption reiterated the fact that the question of EU secession could, in no way, be considered a devolution issue.[1]
[1] This reflects the view, earlier aired, that there was just ‘one [conceptual] trench’ within which any subsequent consideration of the need for a legislative consent motion might founder before they had been reached.