Scotland’s Lord Advocate will try to intervene in Brexit appeal to Supreme Court

Nicola Sturgeon speaking in Bute House earlier this year following the June Brexit vote - Image credit: YouTube

The Lord Advocate is to apply to intervene in the UK Government’s appeal to the Supreme Court over Brexit.

Scotland’s most senior law officer, James Wolffe, will lodge the submission once the UK Government starts the appeal against last week’s ruling by the High Court in London that the UK Government cannot trigger Article 50 without the approval of parliament.

The Lord Advocate’s submission will say that the Scottish Parliament should also be asked to give its consent before triggering Article 50 to leave the EU.

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At a briefing in Bute House today, Nicola Sturgeon said: "I am confirming today that the Lord Advocate will make an application to the Supreme Court to intervene in the appeal proceedings to be brought by the UK Government after the Article 50 ruling in the High Court last week.

"In that ruling the judges clearly decided that the Uk Government could not use the Royal Prerogative to remove rights enshrined in law by the UK Parliament.

"The Scottish Government is clear that triggering Article 50 will directly affect devolved interests and rights in Scotland, and triggering Article 50 will inevitably deprive Scottish people and Scottish businesses of rights and freedoms that they currently enjoy.

“It simply cannot be right that these rights can be removed by the UK Government on the say-so of a Conservative prime minister without parliamentary debate, scrutiny or consent, so in my view legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered.”

The First Minister said she respected the decision of the people of England and Wales to leave and the intervention is “not an attempt to veto that process”.

However, she noted that while the UK as a whole had voted to leave by four percentage points, the margin for remain in Scotland was 24 points, “a far more clear and emphatic result”.

In response to questions from journalists, Sturgeon disputed the idea that it could be seen as “interfering” in the process, but rather it was about protecting “the will of the Scottish people”.

The intervention by the Scottish Government hinges on the issue of whether a legislative consent motion needs to be passed by the Scottish Parliament before Article 50 can be triggered.

Under the Sewel convention, the UK Government should normally seek the consent of the Scottish Parliament for any legislation that impacts on devolved matters.

Since leaving the EU would impact on Scotland, Sturgeon argues that if the consent of the UK Parliament is needed to pass legislation on leaving the EU, then the consent of the Scottish Parliament is also needed.

She said that if the court was going to be looking at that issues, it was “absolutely right that the Scottish Government is formally represented” to make sure its views were heard.

Asked to clarify what the submission from the Lord Advocate would be, Sturgeon answered: “It will be around the process for triggering Article 50 and obviously the central element of this case is the need for legislation in the House of Commons, and if there is a need for legislation in the House of Commons that raises the question of legislative consent, not just in the Scottish Parliament but in Wales and Northern Ireland as well.”

While Sturgeon would not go into detail about what the Lord Advocate would say or comment on the issue from a legal point of view, which she said would be up to the court, she made it clear that in her political view legislative consent is required.

The Scottish Greens have backed the Scottish Government’s position. Europe spokesperson Ross Greer MSP said: “Scotland voted to Remain, so it’s right that the Scottish Government explores all options.

“The Westminster Government’s bizarre desire for a hard Brexit, without scrutiny, is putting Scotland’s economy, universities and public services at huge risk.

“It’s reasonable that MSPs who represent the people of Scotland are consulted before any steps are taken to remove us from Europe against our wishes.”

The Scottish Government has promised to outline its plans for a separate Brexit deal before Christmas, and the First Minister confirmed that is still the time frame.

It will not be waiting for the result of the appeal, expected in January, to put forward its own proposals.

Scottish Labour suggested the UK Government should be focusing on plans for Brexit rather than appealing the High Court decision.

Commenting on Nicola Sturgeon’s announcement, Scottish Labour Europe spokesperson Lewis Macdonald said: "Labour supports the rights of MPs to hold Tory ministers to account on Brexit.

“Rather than spending the next six weeks appealing to the Supreme Court, the UK government’s time would perhaps be better spent getting on with outlining a clear plan for Brexit.

"Labour supports the objective of getting the best possible deal for Scotland, and that means remaining part of the UK and retaining a close relationship with  the EU.”