Scotland鈥檚 Brexit Bill rejection could be the start of a new constitutional crisis

This article by Stephen Clear, Lecturer in Law, was originally published on . Read the .

鈥淰ote leave to take back control鈥� 鈥� but control of what, and from whom? The plethora of questions stemming from this Brexit mantra have already threatened to steer the UK towards a new constitutional crisis. And now, in an unprecedented move, the Scottish parliament is expected to, for the first time, (LCM) from the UK government relating to the EU Withdrawal Bill.

First minister Nicola Sturgeon has called it part of Scotland fighting back against attempts to undermine the devolved administrations, and Westminster鈥檚 opportunistic Brexit . But it may also just be the first step in a new bid for Scottish independence, and ultimately a constitutional crisis for the whole country.

Sometimes referred to as , a LCM is a motion passed by the Scottish parliament, Welsh assembly or Northern Irish assembly indicating their respective agreement to Westminster passing new laws in areas that they would traditionally have control of 鈥� for example health or education.

LCMs operate on the basis that, by convention, the UK legislature will not normally pass laws that either directly affect a devolved subject matter 鈥� areas which are such as health, or education, for example 鈥� , or change the competence, or powers, of a devolved legislature or its ministers, without consent to do so.

However, while these rules exist politically (and have been recognised in the and ), they are not legally binding. Nor do they limit the sovereign power of the UK parliament.

Devolution disputes

Since , both the Scottish and Welsh governments have of powers from Brussels to the UK in areas that are theoretically of devolved importance, but in practice are governed by EU law (which currently takes precedence over domestic rules).

The devolved governments鈥� concerns relate to , including agriculture and fisheries. At present, the UK government, under the 鈥溾�� clause 11 of the Brexit Bill, states that they should have power to amend 鈥渞etained EU law鈥�, rather than Edinburgh, Cardiff and Belfast.

The UK government argues that they need to retain these powers, for an intermittent period of time, so as to create a new UK-wide legal framework to replace EU legislation. It claims this is needed to protect the UK markets, and avoid a direct impact on trade via divergence across the different UK regions.

The Scottish government, however, argues that such action defies the will of the Scottish people who voted in favour of Scottish devolution. Sturgeon has said that the UK government , and is that 鈥渢he consent of the Scottish parliament to the removal of any of its powers should be an absolute prerequisite鈥�.

Scotland鈥檚 Brexit minister Mike Russell has added that refusing the LCM presents the Scottish parliament with a powerful opportunity to unite together and 鈥溾��, by sending a signal that Scotland will not accept attempts to constrain their powers.

Although these are both strong political sentiments, refusing a LCM 鈥� alone 鈥� is less likely to achieve legal impact on the Brexit Bill.

Scotland fronting the challenge

By contrast, following months of negotiations, the majority of Welsh assembly members (AMs) are expected to , and approve the LCM. This is on the basis that the EU powers will be held in Westminster for up to seven years before being devolved back to Wales.

But why the differing opinions over LCMs? It is worth noting the different political climate in Wales compared to Scotland. The majority of Welsh constituencies of Brexit. And there are a higher percentage of UKIP and Conservative AMs compared to MSPs .

Furthermore, with the collapse of the power-sharing agreement in Northern Ireland, there is no official government .

Where next?

The legal reality is, even if the Scottish parliament refuses to approve a LCM, Brexit legislation will not be delayed. Furthermore, the UK government has already indicated that it is willing to challenge Scotland over . But, , it is likely that the Scottish government will similarly want to launch a legal challenge in the Supreme Court. This time relating to new laws that go against the devolved legal competence of Scotland.

However, given UK sovereignty rules, and that the Supreme Court has that LCMs are just political conventions 鈥� and that policing their scope and manner 鈥渄oes not lie within the constitutional remit of the judiciary鈥� 鈥� it seems unlikely that Scotland will enjoy much success in pursuing such arguments.

But that won鈥檛 be the end of things. Instead, the looming constitutional crisis may come politically. There will likely be consequences for Westminster, which will be seen as defying the will of the Scottish people 鈥渁gain鈥�. They voted in favour of devolution after all. Scotland also voted against Brexit, and yet is having to go through with it too. With this backdrop the whole country may very well be heading towards a new constitutional crisis and a .

Publication date: 16 May 2018