NICOLA Sturgeon has won the right for the Scottish Government to intervene in next month’s key hearing at the UK Supreme Court on the triggering of Article 50, which will begin Britain’s two-year divorce from the European Union.
The announcement by the Supreme Court was welcomed by Michael Russell, the SNP administration’s Minister for UK Negotiations on Scotland's Place in Europe, who made clear the views of the people of Scotland could “not simply be brushed aside”.
The UK Government is appealing against a High Court ruling that Theresa May must seek MPs' approval to trigger the Brexit process; the First Minister believes Holyrood should have a vote too.
Herald View: A Brexit ruling that does us a service
On a trip yesterday to Berlin for talks with US President Barack Obama and German Chancellor Angela Merkel among others, the Prime Minister insisted the UK Government was “on track” in the Brexit process.
“We do stand ready to trigger Article 50 by the end of March 2017…I want to see this as a smooth process, an orderly process, working towards a solution that is in the interests of both the UK but also in the interests of our European partners too."
In just over two weeks' time, James Wolffe, Scotland’s Lord Advocate, will appear in the courtroom in an unprecedented session before all 11 Supreme Court judges to make Edinburgh’s case.
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He has been asked “to address in their skeleton arguments the relevance of points of Scots law, so far as they do not also form part of the law of England and Wales, to the determination of the present proceedings”.
While issues under English law have been debated in an earlier judicial review, there have been no court hearings on Brexit where Scottish legal issues have been aired.
The Scottish Government has emphasised how invoking Article 50 raises significant questions about the rights of the Scottish Parliament given it has clearly defined legal powers and duties in areas directly affected by the EU.
Ms Sturgeon has thus far shied away from using the word ‘veto’ in relation to Holyrood and the Brexit issue. She has, nonetheless, made clear that given 62 per cent of Scottish voters voted to remain in the EU, their views, she believes, cannot be ignored.
“Triggering Article 50 will inevitably deprive Scottish people and Scottish businesses of rights and freedoms which they currently enjoy,” she recently explained. “It simply cannot be right that those rights can be removed by the UK Government on the say-so of a prime minister without parliamentary debate, scrutiny or consent.
“So legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered,” insisted the FM.
However, Downing Street, while accepting that it was for the SNP administration whether or not it sought an intervention in the court appeal, has made clear the issue of Brexit is one, in the last resort, for the UK Government.
This week a spokesman said: “Clearly, the UK as a whole voted to leave the EU. It's the UK Government that would deliver on those instructions and that's the process we're going on with."
The case before the Supreme Court will take place from December 5 to 8 with a judgement expected early January.
Two of the 11 judges are Scottish: Lord Reed, who has served for 13 years in Scotland at the Court of Session, and has sat at the European Court of Human Rights, and Lord Hodge, who has specialised in commercial cases and has served on the Scottish Law Commission.
As well as granting permission to intervene for the Scottish Government, the Supreme Court also did so for the Welsh Government and the Independent Workers Union of Great Britain, which represents low-paid workers, including migrants.
Herald View: A Brexit ruling that does us a service
A fourth applicant, named as the “Expat Interveners, George Birnie and others”, has also been allowed to take part.
The Attorney General for Northern Ireland has made a reference to the court on devolution issues and did not need permission to intervene.
Mick Antoniw, the Counsel General for Wales, also welcomed the court's permission to intervene and said the Welsh Government would be seeking to "reinforce the importance of parliamentary sovereignty and the rule of law".
Plaid Cymru said the Welsh Government's intervention was necessary to promote and protect Welsh interests and democracy.
While No 10 insists the UK Government is confident of getting the High Court ruling overturned at the Supreme Court, Whitehall sources have indicated that a three-line Bill has already been drawn up in case the 11 justices uphold the High Court ruling in order to make the passage through Westminster swift and to enable the PM to keep to her timetable of triggering Article 50 by the end of March.
The Labour leadership has already made clear that, while it will seek to pin down Mrs May on the details of her “basic plan” for Brexit, it will not use the parliamentary process to block the triggering of Article 50. In contrast, the SNP leadership has made clear its MPs will vote against it.
Meantime, Downing Street earlier failed to dispel the notion mooted by Wolfgang Schaeuble, Germany’s Finance Minister, that the UK, even after Brexit, might have to continue paying into EU coffers, with a spokesman saying: “What happens once we have left the EU is a matter for the negotiation process."
Mr Schaeuble also took a hard line on Brexit, insisting Britain could not remain in the single market unless it accepted the principle of the free movement of people. “There is no à la carte menu; there is only the whole menu or none,” he insisted.
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