Appealing the decision in Miller to the Supreme Court was always going to be a gamble. For the UK Government, the worst case scenario was not just that an Act of Parliament be required before Article 50 notification to leave the EU could be given – but that approval would also have to be given by the legislatures of the devolved nations, in Wales, Scotland and Northern Ireland.
This would arise if the Court found that the Sewel convention was engaged, and legally enforceable. The convention is a political understanding that where legislative powers overlap between Westminster and the devolved legislatures, Westminster will not normally legislate on devolved matters without their agreement, given as a Legislative Consent Motion. As part of the post-2014 independence package of measures to upgrade Scotland’s devolution settlement, the convention was written into the Scotland Act. Miller was a first opportunity for the Supreme Court to determine what difference this would bring to the power of the devolved legislatures.
The case had the potential to see a robust redefinition of the UK constitution which takes devolution seriously. In the event, the Supreme Court ruled no devolved approval was legally required, and carefully sidestepped a series of devolution issues, which will instead be determined through interactions between the governments and legislatures of the UK.
The Supreme Court was always unlikely to rule that the consent of devolved legislatures was going to be needed to trigger Article 50. After all, as the Court acknowledged, Westminster Parliamentary sovereignty is deeply entrenched within all the Acts of Parliament containing the devolved administrations’ powers. All three devolution acts (for Scotland, Wales and NI) contain the provision that Westminster retains the power to legislate over devolved matters. Furthermore, the act of withdrawing from the EU is seen as a reserved matter of foreign affairs, for the UK government and Parliament to handle. There are, the Court said, no parallel legislative powers to withdraw held by the devolved administrations.
Nevertheless the impact of EU membership and EU law extends over many fields of devolved activity. Withdrawal will have clear consequences for devolved powers – and may in fact extend them, as current constraints set out in the devolution acts for laws to be in compliance with EU law are removed. But, as the Court made clear, putting Sewel into an Act of Parliament has made no difference to whether or not devolved agreement is legally required. It remains a purely political obligation. A failure to respect it by the UK Government and Parliament won’t result in any action before a court. The Supreme Court observed that if the convention was meant to be legally enforceable, Parliament would have made sure that was clear in the language it used in the legislation.
This will disappoint those who believed that placing the convention in legislation would give it some bite and see the decentralised, devolved powers of Scotland, Wales and Northern Ireland more effectively entrenched. In fact, putting the convention into statute was given as one of the key reasons some Welsh Assembly Members very recently voted in favour of supporting a new Wales Bill. This Assembly vote in the week before the Miller judgment was an example of the Sewel convention in action– a political understanding that, as a piece of Westminster Parliament legislation, the Wales Bill reaches into devolved matters, and as such would first require the approval of the Welsh Assembly.
The Bill will change the basis of the devolved powers model operating in Wales to the reserved powers model seen in Scotland and Northern Ireland, but in so doing introduces nearly 200 reservations, and rolls back on some powers currently held by the Assembly. For these reasons, Plaid Cymru Assembly members were unable to vote in favour of the Bill, whilst Labour members supported the Bill in large measure because of the protections a statutory Sewel Convention was believed to present against any roll back on currently devolved powers back to Westminster when Brexit takes place.
What does all this mean for the devolved nations in the Brexit negotiations and beyond? We know that there is no enforceable legal requirement for Westminster to gain the consent of the devolved assemblies before its legislation triggering Article 50. But it is also not definitively ruled out as a political requirement, even on otherwise reserved matters. As the Court pointed out, triggering Article 50 will lead to a change in devolved competences.
There is dispute over whether the Sewel convention applies just to situations where Westminster proposes legislation which the devolved legislature could itself adopt, or whether it applies where the scope of devolved competences is amended. The Court though gave no definitive ruling on the scope, acknowledging the different ways devolved legislatures have used it to date – as well as when they haven’t. Sewel, for the Court will be what the legislatures together decide it to be. There will be different views from the centre and the devolveds on whether a Legislative Consent Motion is required for the Article 50 trigger, and for the vote on the deal with the EU at the end of the negotiations.
There are already indications that the Welsh and Scottish legislatures will table a Legislative Consent Motion at both stages. There is a much stronger case for a constitutional requirement for a Motion on the Great Repeal Bill, which will see EU legislation adopted as UK legislation, and laws passed on matters which fall within devolved competence (where there are clearly parallel powers). This would include legislation in the areas of agriculture and the environment. As a result, it would be harder to make the case that the Sewel convention wouldn’t apply. Ultimately any vote withholding consent would have political force only, though the constitutional consequences should not be dismissed.
Whilst the Miller judgment confirms that the devolved legislatures have no legally recognised role in the Brexit process, structures are in place for the devolved governments to feed into the UK negotiating position, through the work of the Joint Ministerial Committees. This brings together ministers from the different governments in the UK, though very much under the direction of central government – it is not a meeting of four equal partners.
However, there is significant political distance between on the one hand, the UK Government, which has expressed a clear desire to leave the Single Market and on the other Wales and Scotland, both of whom put forward their own White Papers centred on continued Single Market membership. There must be doubts about how effectively an approach can be crafted which satisfies the devolved interests – and what the consequences of that will be.
Jo Hunt is Senior Fellow with the U.K. in a Changing Europe initiative and Reader at Cardiff School of Law and Politics.