Theresa May has conceded in Westminster today that a Legislative Consent Motion (LCM), may have to be passed by the Scottish Parliament, for the Great Repeal Bill to be passed into law.
She was responding to a question from SNP MP Stewart McDonald. The PM said:
There is a possibility that a legislative consent motion may be required in the Scottish Parliament, but that is a matter that is being considered currently between the Westminster and the Scottish governments.
Scottish Secretary David Mundell has previously said that an LCM would likely be needed, and that refusal would have “very serious consequences”. Speaking back in January, he said:
I think there are really big issues that will be in the Great Repeal Bill. There will be issues around powers for this parliament and there will be issues around whether we have a hole in our law because the body of European law hasn’t been adopted. So not agreeing to the Repeal Bill would have very significant consequences.
I personally was surprised by the PM’s admission, as I was under the impression, following last year’s Article 50 case in the Supreme Court, that the Sewell Convention (that states that Westminster will not “normally” legislate on devolved matters) was not worth the paper it was written on.
I asked Lallands Peat Worrier (the indy supporting legal expert) and others for their thoughts. It seems that, no, it isn’t legally enforceable, but the UK constitution is heavily based on conventions, which makes not abiding by them essentially impossible. The office of Prime Minister is not written into law for example, but rather a convention, thus proving the point. Peat Worrier replied:
It said it wasn’t enforceable judicially. Which is not the same thing.
When I asked if the convention could simply be ignored by Westminster, he said:
There is, at least to my knowledge, no example of where this has happened. And countless examples of where consent was respected.
So it seems to me, although I am no expert, that Westminster will have to seek the consent of the Scottish Parliament for the Great Repeal Bill. This of course raises other questions, not the least of which is “what happens if consent isn’t given?” Does it also raise the possibility of the Scottish Government holding the bill to ransom? Say, in exchange for consent being given for a second independence referendum?
And here I thought today wasn’t very interesting.