CommonSpace looks at the legal convention which has been cited by Scottish Government officials during the Brexit saga
ON THE BBC's Sunday Politics Scotland show Michael Russell, the Scottish Government's Brexit minister, said Holyrood would have to give its approval to any legislation taking Scotland out of the European Union (EU).
His comments followed the announcement by PM Theresa May at the Conservative party conference in Birmingham that she will introduce a bill which would scrap the 1972 European Communities Act (ECA) before April next year.
The repeal of the ECA which enforced UK membership of the EU would be carried out after the invocation of Article 50 by the UK Government.
According to the Scottish Government and some legal experts, a convention laid out in the 1998 Scotland Act and secured by the 2016 Act would allow the Scottish Parliament to veto or express its disapproval of the proposed bill by Westminster.
This is referred to as the Sewel Convention. We’ve broken down the key facts about the convention in our explainer.
What is the Sewel convention?
Clause 29 of the Scotland Act of 1998 empowers the Scottish Parliament to pass laws in devolved areas such as health and education, while obliging it to take care that nothing it does is "incompatible" with EU law.
It also establishes a convention formally known as the Sewel Convention, named after Lord Sewel, that Westminster “should not interfere in devolved areas without the consent of Holyrood.”
When was it created?
The Sewel convention resulted from the 1997 white paper and 1998 Scotland Act, which helped recreate the Scottish Parliament and said that relations with the EU were a matter for the government in Westminster coming under the category of external foreign affairs.
This was also secured by the Smith Commission in section two of the Scotland Act 2016 as a formal arrangement.
Why is it important?
The reason Scottish ministers have been emphasising the convention is that it states the UK Parliament “should not interfere in devolved areas without the consent of Holyrood.”
This would have most bearing on the difference between the Scottish Government and UK Government on the issue of Brexit, where Scotland is set to be taken out of the EU depsite voting 62 per cent in favour of remaining.
Any law or legal process from Westminster that crosses the interest of the devolved body of government would need a legislative consent motion (LCM) at Holyrood, which is a way for the Scottish Parliament to give its consent.
Does it amount to a veto on Westminster?
This is where interpretation of the convention gets complicated as the process outlined is vague and does not explicitly empower a “veto” in the conventional sense.
UK ministers and political and legal scholars from a unionist perspective argue that, since the EU referendum vote was UK wide vote and that relations with the EU are an external matter for the UK state, Holyrood has no power to “veto”.
Additionally they state that the law makes provision for the Scottish Parliament to express dissent but not to block any action that falls into the realm of reserved policy.
Scottish ministers argue that repealing the 1972 European Community Act without making provisions for Scotland would be a violation of the devolution agreement.
Picture courtesy of Tom Parnell, Clry2, Koalla2, Rock Cohen and First Minister of Scotland
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