Scotland can't veto Brexit – but London may be unable to stop indyref2

Nick McKerrell

‘Nice knowing you.’ GrAI

As the general chaos around Brexit engulfed the UK one more dramatic headline emerged: “Scottish parliament could block Brexit.”

Nicola Sturgeon, Scotland’s first minister, was asked in a BBC interview on Sunday June 26 whether her parliament might withhold the consent required to pass the UK legislation required to leave the EU. Scotland faces losing its EU status despite every local authority voting to Remain in the EU referendum. “That’s got to be on the table,” she replied. “You’re not going to vote for something that is not in Scotland’s interests.”

Is it true? The short answer is no. Alex Salmond was quick to point this out in another BBC interview when he stressed that the “word ‘veto’ never passed her lips”.

The reason for possible confusion is that if Westminster decides to pass legislation that will affect issues under Holyrood jurisdiction, the Scottish parliament needs to be consulted and pass a motion of consent first. The Scotland Act 2016 passed on the back of the Scottish independence referendum put this on a statutory footing, though it was the recognised practice anyway.

According to the Act:

the parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish parliament.

The Brexit changes will certainly fall into the category that requires this consent. The laws that tie the UK to the EU require to be repealed – most notably the European Communities Act 1972. These laws are intrinsic to how the Scottish parliament operates, since for example all legislation it passes has to comply with EU law.

Given that every Scottish local authority has voted to remain in the EU and most Holyrood politicians took the same view, Nicola Sturgeon was therefore correct to raise the prospect of the Scottish parliament withholding a “legislative consent” motion for repealing these laws.

The woman spurned. Jane Barlow/PA

Yet like most things in life, context is all. The sovereignty of Westminster on its own decisions is also guaranteed by the legislation around devolution. It says the relevant laws do not “affect the power of the parliament of the United Kingdom to make laws for Scotland”.

This means that power ultimately rests with Westminster. Even if the Scottish parliament registers concern or outright opposition, the laws to exit the EU could still be passed. This may be politically problematic but Westminster’s power has no statutory restriction by the Scotland Acts. So to call it a “veto” is inaccurate.

The issue was even put to the test during the passage of the UK’s Welfare Reform Act of 2012. The Scottish parliament declined to grant legislative consent amid fears that the welfare cuts in the legislation would hurt the poor. It made no difference: the law was passed and fully implemented across the UK.

Consent and indyref2

This phantom “veto” is not the only Scottish constitutional issue to emerge from the earthquake of the EU referendum. The Scottish referendum that was once described as “once in a generation” is now “highly likely” to be repeated before the UK’s Brexit negotiations conclude, according to Sturgeon.

The legal issues around this so-called “indyref2” (second independence referendum) are not straightforward, however. The first referendum of September 2014 only came about following the Edinburgh Agreement between the Scottish and UK government. Westminster had to temporarily transfer powers to the Scottish parliament to run the referendum in a move that expired on December 31 2014.

The devolution legislation is ambiguous at best on Holyrood’s power to run an independence referendum of its own. The constitution is a reserved matter and by signing the Edinburgh Agreement, the Scottish government seemed to concede that Westminster approval is necessary.

Signing of Edinburgh Agreement, 2012. Gordon Terris/PA

If Westminster blocked a future referendum it would therefore have a legal basis to do so. Indeed prior to Brexit, this was the position of David Cameron, the prime minister. He said:

I think it is important that a referendum is legal and properly constituted and that is what we had, and it was decisive, so I do not see the need for another one.

Yet the question is as much political as legal. The idea of Westminster rejecting a referendum in the face of a deepening European constitutional crisis and contrary to the wishes of the Scottish government seems unlikely. The Scottish parliament would probably carry on regardless, even if it creates a legal minefield. The general public’s crash course in constitutional law may run for some time to come.

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Nick McKerrell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Glasgow Caledonian University provides funding as a founding partner of The Conversation UK.