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Election needed to authorise potential break-up of UK

by Alper Riza QC | 16.08.2016

The government mustn’t use the crown’s prerogative to trigger Article 50 of the LIsbon Treaty because doing so could lead to Scottish independence. That, in turn, would flout the Act of Union between Scotland and England, an act that can only be overturned by either a general election or another act of parliament.

Scotland and England became the United Kingdom in stages. Elizabeth I had no heirs and consequently her cousin James VI of Scotland became James I of England after she died in 1603. Just over a century later, in 1707, the kingdoms were united following the Act of Union.

After the referendum the leader of the Scottish Nationalists at Westminster and Scotland’s first minister both said that Scotland would refuse to leave the EU and would be prepared hold a second referendum to leave the United Kingdom instead.

The constitutional question that flows from this firm determination to remain in the EU is whether it would be constitutionally legitimate for a minister of the Crown to activate the procedure required under Article 50 to leave the EU. The question is important because the government may use the crown’s prerogative to trigger Article 50.

Given that the Act of Union says the two kingdoms are united forever, the crown’s prerogative ought not to be used without assurances from Scotland’s first minister and the Scottish MPs in Westminster that they will not seek a second Scottish referendum that may break up the UK. In the absence of such assurances, which won’t be forthcoming, the government ought to find another way of triggering Article 50 or not activate it at all.

A new act of parliament could do the trick. However, it would be politically difficult for MPs to overturn the referendum result. If they are, therefore, unhappy with authorising a course of action that could lead to Scottish independence, a general election would be better.

It would be up to the parties to draft their manifestos. I hope that the Labour Party, Liberal Democrats, Scottish Nationalists and Ulster parties would say that it was not worth leaving the EU because, quite apart from all the turmoil it has caused, it might break up the UK. The Tories would be an interesting case. After all, they are a Unionist Party as Theresa May said in her opening remarks as prime minister.

An election would either enable the government to go ahead and leave the EU even if this might cause the break-up of the UK or override the Brexit referendum.

Edited by Hugo Dixon

2 Responses to “Election needed to authorise potential break-up of UK”

  • This is exactly why Nicola Sturgeon is seeking a way for Scotland to stay in the EU (or effectively stay in) while remaining a member of the UK. However, she has made it clear that, if this proves impossible or is blocked by Westminster, then a second independence referendum is the likely consequence.

  • I’m not sure I totally understand the constitutional argument here. As I understand it, royal prerogative is a convention which permits a representative of the Crown to negotiate international treaties, of which the EU exit could be considered one. However both the Act of Union and European Communities Act are considered constitutional Acts and therefore, as I understand it, could not, in theory, be implicitly repealed by any decision made under royal prerogative.

    The Act of Union could not be repealed by either the outcome of a second Scottish independence referendum or a decision by the Scottish Parliament – is that correct? Repeal of the Act of Union and the European Communities Act would require additional Acts of Parliament – again, correct? In the case of the Act of Union, unless explicitly repealed would the net outcome not be that the rest of the UK would simply drag Scotland kicking and screaming out of the EU? What recourse would Scotland actually have?

    I agree that on the face of it the use of prerogative to activate Article 50 is unconstitutional and could be challenged as such but how would that actually work?

    I agree with the outcome of your arguments and would really like there to be another way to end all this, but I am not sure I follow your reasoning – please could you elaborate?