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The Lord Advocate of Scotland, James Woolffe QC, draws his submissions in the ‘Brexit’ case[1] towards a close looking at Section 28 of the Scotland Act 1998 (the 1998 Act).

The Lord Advocate encapsulated his overall position; within which S.28 would be raised: “Fundamentally I say this case is about who has the power to change the law of the land”.

Subsection 8 of Section 28 is a fresh ‘stitch’ - added with distinctive new thread - to the existing tapestry of the 1998 Act.  

S.28 of the 1998 Act provides:

“Acts of the Scottish Parliament.

(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament…

 (7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) 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.”

Subsection 8 was added (23.5.2016) by the Scotland Act 2016 (c. 11), ss. 2, 72(7).

Lady Hale noted that the interpretation of the words, “with regard to”, would require to be differentiated from the words, “relate to”. Lady Hale may have had in mind a point she made in a recent public lecture[2] where she said:

“…[I]t is not possible to divide ‘devolved’ and ‘reserved’ matters into precisely defined watertight compartments: some degree of overlap is inevitable. So, when deciding whether an Act of a devolved Parliament ‘relates to’ a particular subject, whether reserved or devolved, the court has to divine what it is really about. “

The Lord Advocate’s argument likely depends upon the UK Supreme Court taking the view that the ‘different conceptual language’ used in subsection 8 of the 1998 Act means that the Court should construe the impact of the triggering of Article 50 as falling within the same category as those instances where a legislative consent motion has previously been used.[3]

Lord Sumption, similarly to Lady Hale, noted that new subsection 8 was distinctive from some other provisions in the Scotland Act 1998 as it was declaratory of a political position. Its juridical effect might depend upon the political position adopted.

Therefore, whether or not this fresh stitch will offer any significant strength to the argument that the Brexit process requires a legislative consent motion may depend upon the UK Supreme Court’s view as to whether or not it is justiciable in the context of the current debate.

As the Court might well take the view that the triggering of Article 50 TEU is, essentially, a political question, it may not consider the matter legal and justiciable.

It is likely that a legislative consent motion will not be considered appropriate in that light.