Legal expert: Supreme court shows brexit has “blown apart” UK constitution

UK supreme court on Brexit has heard from the UK’s various national parliaments

ONE of Scotland’s leading constitutional legal experts has said that it is clear from proceedings at the UK supreme court that brexit has “blown apart” the antiquated constitutional basis of the UK.

The UK Government is in the midst of attempts to have a previous ruling of the supreme court, that the UK Parliament must vote to invoke Article 50 and trigger brexit, overturned.

The Government maintains it alone has the authority to induce the UK’s exit from the EU, following a majority vote to leave the 28 member block in June, under the use of so called prerogative powers, technically imbued in the monarchy, but in fact wielded by central government.

Speaking to CommonSpace, Dr Nick McKerrel, a lecturer and researcher in constitutional law at Glasgow Caledonian University, said:“The UK state is now in open crisis which arguably has been hidden since the strong vote for independence in 2014.  The devolution settlements and indeed the relationship with the EU superstructure was always a little precarious.  The Brexit vote has blown it apart.”

The issue was initially taken before the court by a group of private citizens, led by Gina Miller, an investment fund manager, who appealed to the traditional constitutional view of parliamentary sovereignty.

“The UK state is now in open crisis which arguably has been hidden since the strong vote for independence in 2014.” Nick McKerrel

Administrations from national parliaments including the Scottish, Welsh and Northern Irish (NI) assemblies have also appealed to be consulted on brexit.

McKerrel said that in the wake of the court hearings, which met for four days in early December, it could be seen that the UK’s current constitutional and political distribution of power, established piecemeal since the turn of the century across the Westminster Parliament and three national devolved assemblies, is unstable.

He said: “It means that every element of the state is attempting to assert authority – the Government, Westminster, even the devolved legislatures – nominally subservient to London – have asserted their power because of the realpolitik of their situation.  

“Although the supreme court will issue a clear judgment on the use of prerogative it is unclear how it will be able to intervene with the new legal and political tensions that have emerged within the devolved UK state.”

The Scottish Government appealed to the court on 7 December that brexit could impact upon devolved competencies, and that the Scottish Parliament must therefore have a say on the brexit process.

The NI Stormont administration has raised concerns that brexit will interfere with some parts of the Good Friday agreement, and other arrangements which currently see substantial political collaboration between NI and the Republic of Ireland, which will remain within the EU.

Background: Scottish Government will intervene in Brexit supreme court case

McKerrel added that the Supreme Court judgement on whether prerogative powers or the parliament could enact brexit would not end the dispute over the competencies of devolved administrations. In Scotland, he said there remained clear problems.

“The act of parliament which created Holyrood explicitly mentions EU law – so that would have to be altered when brexit occurs,” he said.

The 11 court judges are expected to reach a judgement in January. The UK Government has indicated that it believes they will find again that parliament is sovereign, and is the institution that can trigger brexit.

Picture courtesy of DAVID HOLT

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