Scotland politics

Lord Wallace: Holyrood may have Brexit legal role

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Media captionLord Wallace: "We all know there is a huge amount of legislation that has been done to implement European directives."

Holyrood may have to be given a legal role in the Brexit process, according to a former Advocate General for Scotland.

Lord Wallace advised the UK government on Scots law during the Conservative-LibDem coalition.

He argues there is a "clear role" for the Scottish Parliament in plans to repatriate laws from Brussels in a Great Repeal Bill.

The UK government said the implications for devolved areas would be discussed.

The Supreme Court will consider next week whether the UK Parliament must vote to trigger Article 50 - starting the formal process of leaving the EU.

The Scottish government's top law officer, Lord Advocate James Wolffe, will argue in that case that Holyrood should have a say too.

Lord Wallace believes it is unlikely the court will give Holyrood a formal role in triggering Article 50.

But he argues incorporation of European law into UK statute raises the question of the Sewel Convention, whereby the UK parliament does not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.


Who is Lord Wallace?

The Liberal Democrat peer is one of a few politicians to have served in both the Scottish and UK governments.

At Westminster, he was Advocate General between 2010 and 2015.

He was deputy first minister of Scotland between 1999 and 2005 and served as acting first minister on two occasions.


Prime Minister Theresa May promised a Great Repeal Bill in the next Queen's Speech, to remove the European Communities Act 1972 from the statute book and enshrine all existing EU law into British law.

The repeal bill will enable the UK Parliament to amend and cancel any unwanted legislation and also end the jurisdiction of the European Court of Justice in the UK.

Lord Wallace's argument focuses on the need for legislative consent for laws which cover matters devolved to Scotland.

Image caption Lord Wallace believes legislative consent motions may have to be passed for matters normally devolved to Holyrood

He says: "My view is it will repeal the European communities act of 1972, as there's so much legislation affecting vast areas of our lives, which have been made under that act, it's more likely to be a great re-enactment act.

"I think at that point there is clearly a role - for the potential of a legislative consent motion, because many of the things we're talking about impact on areas of devolved competence; farming, fishing, the environment.

"There's a huge amount of legislation there that's been done to implement European directives, that takes us right into the competence of the Scottish parliament and Scottish ministers."

Asked if that could give Holyrood a veto, Lord Wallace added: "You're into a hypothetical situation there. But it's an important hypothetical situation.

"Legally, the Westminster parliament is still sovereign. The Scotland Act, even as it's been amended, still says that. The UK parliament could pass this without a legislative consent motion. That's the legal position.

"The political situation is somewhat different."


European Communities Act 1972

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Media captionTheresa May told the BBC's Andrew Marr that repealing the EU act will make the UK "sovereign and independent"
  • In 1972 the UK Parliament passed the European Communities Act
  • It gave direct effect to EU law, so if there is a conflict between an act of the UK Parliament and EU law, Westminster loses out and EU law prevails
  • The European Court of Justice (ECJ) became a kind of Supreme Court of Europe, interpreting EU law with judgements that were binding on all member states

Did the UK lose its sovereignty in 1972?

Reality Check: How would the UK rid itself of EU law?


SNP MP Joanna Cherry, who is also a QC, disagrees with Lord Wallace on whether triggering Article 50 needs Holyrood's backing, but agrees on the Great Repeal Bill.

"No doubt it will repeal EU law which is currently in the legislative competence of the Scottish Parliament - at that stage I've no doubt that a legislative consent motion will be required.

"Where I depart from Lord Wallace is that I also believe that an LCM would be required in relation to any legislation to trigger Article 50 for the detailed reasons set out by the Lord Advocate."

A UK government spokesman said: "The implications of exiting the EU for the devolution settlements will require discussion with the devolved administrations.

"The prime minister has made clear her intention to engage with the devolved administrations, and the Joint Ministerial Committee (EU Negotiations) has been established to provide a forum for the discussion of issues stemming from the negotiation process."