Brexit’s ‘legal mechanisms’ and Scotland.

A number of cases have been raised at the England and Wales High Court protesting about Brexit, the need for an Act of Parliament vote and the non binding nature of the referendum. I don’t believe that these cases can progress at that level, I wrote some thoughts a few weeks ago using the Hanx typing app, to make them readable, I decided to blog them too.

At the point of writing the Tory leadership contest was ongoing. 

What if we get a Tory PM willing to push the button?

Whitehall will have had time to advise them.

Can they serve the EU with Article 50 notification?

Wouldn’t that need a Parliamentary Vote?

The Act for the Referendum specified nothing. It wasn’t even a binding vote.

Normal course would be that the PM uses their normal powers under Royal Perogative as leader of the UK Government to treat with the EU.

The ‘need’ for a Westminster Parliamentary vote implies that the Sovereign decision lies with the UK Parliament, but whilst the Sovereignty of Parliament is an English Legal concept, it may not be seen as sufficient as all three devolved parliaments are purposely designed and bound by EU law. 

That may lead to a legal challenge on the validity of Westminster vote being sufficent to trigger the Article 50 notification.

In the instance of a challenge to that Westminster vote under Scots Law, it could be enough to trigger a case to the UK Supreme Court, as after all, a prudent Scottish Court could take a view or opinion on the matter but would not wish to create a concept that would bind or affect on other territories, that would be beyond it’s competence as a court for Scotland. 

Treading on what Sovereign Powers Westminster has for the former Kingdom of Scotland is tricky as the 1707 Acts of Union created a new parliament at Westminster, but English constitutional experts say that the Union merely continued Westminster with a greater territory to rule, but in that case, why are so many aspects of Scots Law different to their English equivalents after over 300 years of Union?

The Scottish Parliament at Holyrood sees itself as a continuance of the pre-union parliament, it however does not have an equal power or footing as Westminster ‘reserved’ powers including those of treating with the EU.

So, Holyrood might object or pass a vote against Brexit, but it’s comment could be ignored by Westminster. The executives in Belfast and Cardiff might similarly vote against.

Then, it resides with if the Devolved Governments bother to take a legal challenge through the UK Supreme Court by using interpretation of the acts used to grant devolution to Wales, Northern Ireland and Scotland. 

That essentially takes a journey of Parliament versus devolved Parliament and a question of interpretation of Westminster’s powers. 

I would think it entirely unlikely that a ruling could be given that does not assert the rights for Westminster to use the Royal Perogative or a vote in the House of Commons as a suitable mechanism to quit the EU; Despite whatever the discrepancy between the overall percentage vote for Leave across the UK and the percentages for Scotland or Northern Ireland.

The UK Supereme Court may say that the will of the voters in Scotland and Northern Ireland should be recognised and suggest that can be done by amendments to the relevant Acts of Devolution before any notice to quit is served by the UK government or new Prime Minister.

No crisis, but a constitutional fudge that would be referred back to Westminster to answer.

Perhaps this might buy time for negotiations and to head toward a ‘Greenland’ solution allowing one legal jurisdiction of the UK to leave the EU or suspend membership, whilst the other two Jurisdictions remain in the EU.

To explain, there is the Realm of Denmark that includes Greenland and the Faroe Islands and continental Denmark. The constituent parts of The Realm are in and out of the EU with Greenland and Faroe Islands outside but subject to their own devolved governments. 

Scotland and Northern Ireland could be seen to have their own devolved parliaments, their own legal systems as distinct jurisdictions from England and Wales and even their own bank notes. 

The fudge would need Westminster to agree a partial exit of the EU for the UK as a ‘union nation’ specifically referring to a unique status as a Sovereign State under a shared monarch but where the Westminster Parliament has served as a successor Parliament after the Union Acts of 1707 and 1800. 

The ‘Union State’ persists in London, UK ministries still cover the whole, but devolved powers get extended, close enough to ‘Home Rule’ but with the catches that make the hard decisions on tax and spending fall on the First Ministers and that the devolved parliaments. Supporters of the union call it federalism, but Westminster gives the bare minimum necessary, London’s financial position is protected.

Unsurprisingly, this is the playbook from the Unionist side.

There’s a point to this, the proposal for a new act of union from politicians merely follows through some thinking from legal sources. 

And if you look at some of Professor Tomkins’ work online and search on ‘Act of Union’ and Scottish Sovereignty, we get towards McCormick Vs Lord Advocate 1953 and a view that ‘the unlimited sovereignty of parliament is a distinctly English principle and has no counterpart in Scottish Constitutional law.’ 

Obviously if you change the law through a ‘new’ act of union and actually define a ‘British state’ in terms other than the 1707 and 1800 acts.

You get nearer to the 1920’s and the methodology used to keep Northern Ireland in ‘The Union State’ whilst freeing the Irish Free State. 

The Irish ‘separatists’ in their own right used parallel lines of their own parliament – ‘Dail Eireann’ and that of the Created ‘Parliament of Southern Ireland’ with the settlement proposed by Westminster used to legitimise what they wanted. The parliament they created after the uprising evolved with time.

The Union State / or Imperial Parliament had expanded far beyond James VI’s ‘Great Britain’ and had parts later removed as dominions or free states or independent nations

If a new Act of Union is created, it limits movement, right now, a solution can be taken in many directions, a unilateral referendum with a yes conclusion is enough. it follows clear votes at Westminster and Holyrood levels of representatives.

Sometimes there are procedures and rules, sometimes there is action.

Since writing, a so-called cross party group prepared a Draft New Act of Union. – to my mind their content was poor they started by defining the UK as England, Scotland, Wales and Northern Ireland, which doesn’t reflect how the 1707 and 1800 acts worked and takes no account of the fudge made for the Irish Republic (Ireland) to secede. 

To accurately start you recognise the first Act of Union between The Kingdoms of Scotland and England, you recognise Wales and Ireland were possessions of England,  you look at the Second Act of Union incorporating Ireland’s representatives and you work from there. 

You recognise the home rule bills for Ireland, The Statute of Westminster, where a formerly Imperial parliament freed the bonds for Canada, The Irish Free State and The Union of South Africa, Australia and New Zealand only required their own legislation recognising the Statute, which they later did in 1942 and 1947.

So to finish,

What is needed to trigger Brexit and can the English Courts or the Supreme Court of the U.K. Adequately rule on the matter?

Let’s see the 1707 Act of Union

Article XIX is pretty clear that no English Court has any jurisdiction in Scotland and the power of the Court of Session were to be maintained. 

Article XXIV talks of the Great Seals and that a United Kingdom Great Seal be used in any treaties with Foreign Princes or States.

Therefore the perogative lies with the Crown and not parliament to deal with the EU (as a Foreign State, or collection of). 

The English Courts cannot use their jurisdiction beyond England (England, Wales and NI), the treaty for joining the EU was in the name of Elizabeth as Queen of the UK, obviously signed on her ministers advice. 

The trigger to remove from the EU is therefore under Royal Perogative. It is for her Ministers (Current Prime Minister and Cabinet) to do so on her behalf.

Devolution means Elizabeth has Scottish Ministers that do not agree with Brexit and do not believe it is in the Interests of Scotland to do so, but Foreign Affairs are not devolved powers and are outside Holyrood’s powers.

No doubt similar was said when The Irish Free State moved toward the Irish Republic andformally became independent, although in practical terms it had been from the end of the 1920’s civil war. Precedence can be found for whatever argument that might suit your needs.

The fun begins when Brexit’s Article 50 is served.


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