Con­sti­tu­tion Le­gal ex­perts dif­fer over power to block Brexit

The Daily Telegraph - - Britain Out -

When the Scot­tish Par­lia­ment was set up, a state­ment was made by Lord Sewel, who was re­spon­si­ble for the Scot­land Act, that the UK Gov­ern­ment would not seek to leg­is­late on de­volved mat­ters with­out first re­ceiv­ing the con­sent of Holy­rood.

The con­ven­tion of this “leg­isla­tive con­sent mo­tion” is en­shrined in a Me­moran­dum of Un­der­stand­ing and Sup­ple­men­tary Agree­ments, which out­lines the prin­ci­ples of co­op­er­a­tion un­der­pin­ning the re­la­tion­ship be­tween the UK Gov­ern­ment and the de­volved ad­min­is­tra­tions.

It says the UK Par­lia­ment “will not nor­mally leg­is­late with re­gard to de­volved mat­ters ex­cept with the agree­ment of the de­volved leg­is­la­ture”.

Ear­lier this year, Prof Sir David Ed­ward, a for­mer judge of the Euro­pean Court of Jus­tice, told the House of Lords se­lect com­mit­tee on the Euro­pean Union that he be­lieved the Scot­tish Par­lia­ment would have to give its con­sent

to mea­sures ex­tin­guish­ing the ap­pli­ca­tion of EU law in Scot­land, as part of the process of with­draw­ing from the EU. The com­mit­tee’s re­port said he could “en­vis­age cer­tain po­lit­i­cal ad­van­tages be­ing drawn from not giv­ing con­sent”.

But other le­gal ex­perts dis­agree, and point to the fact that the leg­is­la­tion only says the UK Par­lia­ment will not “nor­mally” leg­is­late on de­volved is­sues with­out agree­ment.

Prof James Chalmers of Glas­gow Univer­sity said con­sent should be sought from Holy­rood but West­min­ster “has never been re­quired to do that and has al­ways had the power to over­rule”. He added: “It wasn’t ever a rule of law, it was just a mat­ter of po­lite­ness as much as any­thing else. It would be po­lit­i­cally awk­ward to do this with­out leg­is­la­tion con­sent, but I think the whole thing is so po­lit­i­cally awk­ward that this does look fairly triv­ial, given all the other prob­lems.”

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