2.4 Devolution and Brexit

Miller 1 [2017]

• Sewel Convention and Scotland Act 2016 are political rather than legal commitments, so the courts have no jurisdiction over them

• Westminster does not need to seek consent from the devolved administrations before it exercises its right to legislate on the competence of the devolved administrations

McHarg and Mitchell on Miller 1

ruling was unsurprising. The Supreme Court’s structural position as an institution of the UK may limit its capacity to acknowledge the plural and contested nature of the devolution settlements.

Craig on Brexit Negotiations

while the devolved bodies exercised their voices, its impact at Westminster was muted.

Dispute over Returning Powers under the EUWA

·       Returning EU powers which intersected with devolved competence would go directly to devolved institutions.

·       Westminster retains the power to freeze these powers.

·       Scottish Parliament did not consent, but the EUWA was enacted anyway.

Continuity Bill Reference [2018] Facts

Holyrood responded to the EUWA by passing its own Bill designed to give EU law continuing effect in devolved areas post-Brexit.

Why was Section 17 of the Continuity Bill unlawful?

Section 17 had made the legal effect of UK Minsters’ subordinate legislation conditional on the consent of Scottish Ministers. This unlawfully amended the Scotland Act s28(7)

Supervening Legislation in Continuity Bill Reference

Between the beginning of the challenge and the judgment, the UK government passed supervening legislation which added the EUWA under Schedule 4 as a piece of legislation which was protected from devolved amendments. This rendered the provisions of the Continuity Bill incompetent.

McHarg on Continuity Bill Reference

even when the UK Government loses a legal challenge, it can simply legislate to override devolved legislation. Westminster always has the legal upper hand.

UNCRC Bill Reference [2021] Facts

Scotland passed UN Convention on the Rights of the Child, and stated that if the UK tried to pass legislation incompatible with the UNCRC, it will not apply.

Why were parts of the UNCRC Bill unlawful?

It was unlawful to:

• Give Scottish courts a duty to read UK legislation in line with the UNCRC

• Give Scottish courts the power to strike down UK Acts of Parliament

• Declare Subsequent Acts of Parliament invalid

Status of the Scotland Act according to UNCRC Bill Reference

The Scotland Act is not a constitutional statute

Brexit Agreement in Northern Ireland

Instead of there being a hard border between NI and RoI, there is a hard border in the Irish Sea. Northern Ireland continues to follow Single Market and Customs Union rules.

Impact of Brexit in Northern Ireland

Brexit has effectively strengthened an all-Ireland economic architecture which accelerates or normalises the prospect of reunification

Craig and the Impact of Brexit

Brexit had a negative effect on the relationship between Westminster and the periphery. Where Wales voted for Brexit, it voted for soft Brexit. Scotland and Westminster opposed it altogether.

Impact of Brexit on Quasi-Federalism

·       The insistence of courts on Westminster’s unqualified power suggests a reassertion of central authority.

·       Devolution is more permission than partnership.