Michael P. Clancy O.B.E. Director, Law Reform, The Law Society of Scotland, explores the EU referendum from Scottish perspectives

While the UK voted to leave the EU by 52% to 48%, in Scotland the vote to Remain was 62% to 38%. In the Scottish Parliament following the referendum, the First Minister Nicola Sturgeon MSP noted it was the UK Government’s responsibility to restore stability and confidence and set out its plan for the way forward. She wanted the Scottish Government involved at every step.

When the Prime Minister, Theresa May MP visited Scotland she committed to Scotland being fully engaged in discussions on the future EU relationship and that she would not trigger Article 50 until the UK negotiation approach was established.

The First Minister stated that she wanted to defend:-

a)         “the need to make sure Scotland’s voice is heard and our wishes respected.”

b)         “safeguarding free movement of labour, access to a single market of 500 million people and the funding that our farmers and universities depend on”.

c)         “ensuring the continued protection of workers’ and wider human rights”.

d)         “the ability of independent nations to come together for the common good of all our citizens, to tackle crime and terrorism and deal with global challenges like climate change”.

e)         “making sure that we don’t just have to abide by the rules of the single market but also have a say in shaping them.”

The Scottish legal system and constitutional arrangements raise specific constitutional issues.

Leaving the EU is a “Whole of Governance” matter which should include the UK Government and Whitehall Ministries but also the Scottish Government, the Northern Ireland Executive and the Welsh Government. 

A new Joint UK/Devolved Ministerial Committee on EU Negotiations is a step forward but cooperation between the UK Government and the Devolved Administrations must be embedded to ensure the success of the negotiations.

Miller & Dos Santos v Secretary of State for leaving the EU

The Scottish Government’s intervention in this UK Supreme Court case highlights the Scottish constitutional issues.  The Scottish Government’s case is based upon UK Constitutional Law and the devolution arrangements for the Scottish Parliament and Government in the Scotland Act 1998.  The Lord Advocate, the Scottish Law Officer, contends that withdrawal would have a significant impact on the constitution of the UK by depriving the EU Institutions of jurisdiction as regards the UK and by the effect on the devolved institutions. 

The Lord Advocate argues that Article 50 notification requires legislation because withdrawal would change the Scottish Parliament and Government’s competence and/or change devolved law.  This is because The Scottish Parliament and Government must observe and implement EU law, limiting their legislative, executive and policy competence.  Such a law would in the Lord Advocate’s view need the consent of the Scottish Parliament.  Furthermore the Claim of Right 1689 and the laws uniting Scotland and England prohibit the amendment or repeal of law by Executive action under the Royal Prerogative.

The Lord Advocate’s case is that the operation of Article 50 and withdrawal from the EU would:

(a)        Change the legislative and executive competence of the Scottish Parliament and Government.

(b)        Disapply EU laws with direct effect applying in Scotland;

(c)        disapply domestic laws which depend on membership of the EU.

He argues that any changes should therefore be made by an Act of Parliament which as it would change the legislative and executive competence of the Scottish Parliament and Government, requires the consent of the Scottish Parliament.

The Supreme Court will publish its judgement in early 2017 and many of these issues will be settled.  Whatever the Court decides, full engagement of all parts of the UK will be an essential part of the negotiation and withdrawal process and should take full account of the legal, constitutional, and (social?) differences that may exist.