Supreme Court’s Brexit ruling – Westminster is supreme, and that includes over devolved bodies

On 24 January 2017 the Supreme Court gave the verdict that most expected, that the Government could not trigger Article 50 without the consent of Parliament.

Many hailed the decision as a victory for democracy, and it has vindicated the efforts of Gina Miller and the other private citizens who brought the challenge against the Government, not in an effort to prevent Brexit, but to ensure that proper democratic processes were observed. However, this was not the only constitutional ruling contained in the judgement, as it was also unanimously ruled that the devolved bodies of Wales, Scotland, and Northern Ireland did not have a say and did not have the legal right to be consulted.

This additional point for the court to consider was added to Gina Miller’s initial challenge by legal representatives from Wales, Scotland, and Northern Ireland. It was recognised from the outset by these representatives that their respective devolved bodies did not have a veto over the decision, but they argued that each body had the legal right to be consulted. This proposition is based on the Sewel Convention, which is the recognised convention that Westminster will not legislate on matters affecting devolution and devolved matters without the consent of that devolved body. As EU law affects a whole range of devolved areas, not to mention significant EU funding in Wales, any cessation of EU law clearly falls into the category of the devolution settlement. This convention has actually been enshrined in statute, in the Scotland Act 2016 which states ‘it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’, with an almost identical provision also in the newly passed Wales Bill 2017.

However, it was determined by the Supreme Court that this convention is merely a political understanding and not a legally enforceable obligation. This is despite the recent inclusion of the convention in the Scotland and Wales Acts, stating ‘our view is that the purpose of the legislative recognition of the convention was to entrench it as a convention.’ This decision was angrily received in Scotland, with Nicola Sturgeon stating “It is now crystal clear that the promises made to Scotland by the UK government about the Sewel convention, and the importance of embedding it in statute, were not worth the paper they were written on”.

It is clear that the Sewel Convention only extends to domestic issues and that, as Lord Neuberger outlined in the judgement, ‘Relations with the EU are a matter for the UK government’. This serves as a stark reminder to the Scottish Parliament and the Northern Irish and Welsh Assemblies that their remit is strictly domestic, and when it comes to international decisions, thbrexitey do not even need to be consulted.