No Art 50 veto for devolved legislatures

The Supreme Court’s judgment in the Art 50 case deals a heavy blow to the devolved Parliaments.

Delivering his judgment in R (Miller) v Brexit Secretary [2017] UKSC 5 this week, Lord Neuberger said the government does not have to consult with the devolved Parliaments before serving notice under Art 50 of the Treaty on European Union, which will launch the legal process by which the UK leaves the EU.

Lord Neuberger said the devolution Acts were passed on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to the UK government and Parliament.

“Accordingly, the devolved legislatures do not have a parallel legislative competence in relation to withdrawal from the EU,” he said.

Lord Neuberger said the Sewel Convention, which requires the devolved legislatures to vote on any new laws that affect devolved matters, operates as a political restraint on the activity of the UK Parliament. While it plays an important role in the operation of the constitution, however, the policing of its scope and operation is not within the constitutional remit of the courts. Therefore, the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.

Dr Javier García Oliva, senior lecturer in law at Manchester University, said the Supreme Court concluded “universally and firmly in the negative” on the question of whether the legislative bodies of Scotland, Wales and Northern Ireland have to consent to the UK’s departure from the EU.

“In strict legal terms Westminster has retained control over foreign policy and international relations, and although there are, undeniably, major political battles which are still being fought over this territory, they must be contested outside of the legal arena.”