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When the Supreme Court judgment in the Miller case declared that there needed to be an act of parliament for the Article 50 notification to be made, there was relief — even delight — in parts of Whitehall and Westminster.
Yes, the UK government had lost on the narrow point: it was not lawfully open for the prime minister to make the notification under the so-called royal prerogative. It had been roundly defeated on the main part of the application, notwithstanding instructing the attorney-general to represent its defence.
Yet the government was happy not to have been bested on the wider basis of devolution. There would be no need, decided the Supreme Court, for any formal involvement for the devolved administrations of Scotland, Wales and Northern Ireland. Still less was there any legal basis for a veto.
The government had lost, but not as badly as it feared. A short one-clause bill, which had been prepared earlier, was quickly published and put before parliament. Ministers could now get on with delivering Brexit. There would be no constitutional check or balance from the devolved powers.
Or so it thought.
On Monday, the Scottish first minister, Nicola Sturgeon, and her Scottish National Party government seemed to have done something quite remarkable. She has somehow created a check and balance from constitutional thin air. Ms Sturgeon cannot point, and has not tried to point, to any express provision. But something significant has happened.
The Miller case gave the government only a short-term advantage in the politics of devolution. This is because the Supreme Court made plain that the Sewel convention — which had been placed on a legislative basis in the Scotland Act — had no legal substance. It was a measure to give devolved powers a supposed assurance that they would not be imposed on by Westminster. But the Miller case decided it was only a convention, which means it can be legally disregarded.
In this way, the Scottish government had a win-win with the Miller case: either it got a formal role over Brexit or the Sewel convention was exposed as being legally empty. Both outcomes had their advantages. It turned out to be the latter.
Monday’s speech by the first minister takes the tactical approach of the Scottish government to Brexit a step further. In saying that it will seek approval for a referendum to be held once the proposals for the divorce from Europe are apparent, the Scottish government will be maximising its influence on the content of any deal. Either it will be palatable to Scotland or there is likely to be a vote for independence.
Ms Sturgeon and her ministers have no formal power to perform this pincer movement. Indeed, such a referendum formally requires an order in council under section 30 of the relevant Scotland Act, which in effect requires the UK government’s consent. (It also needs the approval of both houses of parliament and the Scottish parliament.)
The UK government could refuse to start the process for a section 30 order but that would carry its own political consequences. Again, this is a win-win for the Scottish government, as any such stance would be used to gain further political support for independence. The impression is of a blundering English mouse being played with by a Scottish cat.
Ms Sturgeon and her ministers may not have the formal legal or constitutional power to influence the shape of Brexit but they have created the means of doing so anyway. Under pure constitutional theory, there is the view that the Westminster parliament is sovereign, and that the devolved powers have no ultimate autonomy. The UK parliament can, it is contended, legislate as it wishes, and the Scottish government would have to lump it.
But constitutional practice is not always the same as constitutional theory. Scotland’s first minister appears now to have real political power, and she is seeking to exercise it. She has done this by setting different parts of the current constitutional arrangements against each other. Her desire to obtain a section 30 order will vibrate the chords of the constitution so they are felt by the UK ministers responsible for the impending hard Brexit, and their actions (and inactions) shall in turn send vibrations back. The one plausible consequence of all this could be a referendum vote for Scottish independence.
Ms Sturgeon has, therefore, made a deft first move. The first move of Sinn Féin in Northern Ireland is yet to come. Neither entity, as I have set out elsewhere, is to be underestimated. While the UK government has so far had an easy ride on Brexit — winning parliamentary votes against a non-existent opposition — the SNP and Sinn Féin have been watching and preparing and waiting. And we will see what constitutional and legal pressure points they use for their respective political objectives.
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