A constitutional row over devolution has erupted ahead of next week’s article 50 case in the supreme court, setting the attorney generals in London and Belfast at odds with their counterparts in Cardiff and Edinburgh.
A submission by the Westminster government’s legal team has dismissed Scottish and Welsh arguments that triggering article 50 of the Lisbon treaty will diminish the legislative powers of their administrations.
When the case opens in the supreme court next week those seeking to assert their authority will include the counsel general for Wales, Mick Antoniw, who is a Labour member of the Welsh assembly; James Wolffe QC, Scotland’s lord advocate; John Larkin QC, attorney general for Northern Ireland; and the attorney general for England and Wales, Jeremy Wright QC, who is a Conservative MP.
The main thrust of the legal dispute is over whether the government’s executive powers, derived from the royal prerogative, trump parliamentary sovereignty in terms of triggering the UK’s departure from the EU.
The question of whether Brexit can take place without the devolved assemblies’ agreement will, however, also be raised.
The supplementary skeleton argument released by the Westminster government on Thursday states: “The devolution legislation expressly does not give competence to the devolved legislatures or administrations over the conduct of foreign affairs, including relations with the EU. The prerogative power to withdraw from treaties is deliberately unaffected ... no issue concerning the Sewel convention arises in this case because there is no legislation before the court. This case concerns the proper use of the prerogative.”
The Sewel convention says that the UK parliament may not legislate for devolved matters without the consent of the devolved legislature.
The submission by Wright and his legal team continues: “The [supreme] court is being invited by the lord advocate and the counsel general to stray into areas of political judgment rather than legal adjudication. The court should resist that invitation, particularly where the underlying issue is one of considerable political sensitivity.”
The position adopted by Larkin, that the article 50 case does not raise any devolution issues even in relation to the Good Friday agreement, was praised by Wright.
In a footnote the document refer to “the considerable repetition by the lord advocate and counsel general of submissions”. At another point it quibbles over the Welsh and Scottish approaches, saying: “That [Welsh] argument, in contrast to that of the lord advocate, at least has the merit of focusing on the issue of use of the prerogative, which is the issue before the court.”
Skeleton arguments, submitted to judges before court hearings, sometimes do contain personally dismissive asides. The tone of some of the language in Wright’s submission has, however, drawn sharp comment, including from Sir Paul Jenkins QC, a former head of the government legal department.
Jolyon Maugham QC tweeted: “Translated from lawyer, para 39 says the Welsh assembly is wrong but, unlike the Scottish government, at least is not stupid to boot.”
