The use of the prerogative power to invoke Article 50 of the TEU has been much discussed since the Brexit vote on 23 June 2016 (including this initial post on the matter and a follow-up post). The present author believes that only an Act of Parliament can be used to invoke Article 50 but if I am mistaken then a very interesting route to Scottish independence potentially opens up.
If the UK government were to persist in arguing that the Prerogative can be used to trigger Article 50 and that submission were to be upheld by the courts then that will logically lead to a conclusion that Westminster will not welcome: that the Prerogative can be used to dissolve the Union between Scotland and England.
To understand why we must look at the often overlooked legal mechanics of the union between Scotland and England because there is a strong analogy with the Articles of Union 1706 and the Acts of Union 1707 and the Treaty of Accession to the EC and the European Communities Act
Creating and Dissolving Unions: International Treaties and Acts of Parliament
The terms “Articles or Treaty of Union” on the one hand and “Acts of Union” tend to be used interchangeably by authors discussing the Union of Parliaments, for the understandable reasons that their substantive texts are the same, however legally they are quite different types of document. The Articles of Union signed on 2 July 1706 were an international treaty agreed between the two sovereign kingdoms of England and Scotland with the respective negotiating “teams” acting under the prerogative. However, this 2 July treaty did not create the Union of Scotland and England any more than the accession treaty on 22 January 1972 between UK, Denmark and Ireland with the existing EC members signed by the then Prime Minster, Ted Heath, made the UK a member of the Common Market. The UK only became a member of the EC after the European Communities Act 1972 had been passed on 17 October 1972 and came into effect on 1 January 1973. Likewise, Scotland and England were not conjoined until the passing of both the English and Scots Acts of Union which ratified the Articles of Union of 1706. This distinction between treaty and act is made very clear in the preamble to the 1707 (Scots) statute:
Whereas Articles of Union were agreed on the Twenty Second day of July in the Fifth year of Your Majesties reign by the Commissioners nominated on behalf of the Kingdom of England under Your Majesties Great Seal of England bearing date at Westminster the Tenth day of April then last past in pursuance of an Act of Parliament made in England in the Third year of Your Majesties reign and the Commissioners nominated on the behalf of the Kingdom of Scotland under Your Majesties Great Seal of Scotland bearing date the Twenty Seventh day of February in the Fourth year of Your Majesties Reign in pursuance of the Fourth Act of the Third Session of the present Parliament of Scotland to treat of and concerning an Union of the said Kingdoms
And Whereas an Act hath passed in the Parliament of Scotland at Edinburgh the Sixteenth day of January in the Fifth year of Your Majesties reign wherein ’tis mentioned that the Estates of Parliament considering the said Articles of Union of the two Kingdoms had agreed to and approved of the said Articles of Union with some Additions and Explanations And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming the Tenor of which Articles as ratified and approved of with Additions and Explanations by the said Act of Parliament of Scotland follows
If it is correct that the mere use of the Royal Prerogative is sufficient legal authority to trigger Article 50 of the TEU and so revoke and repeal the European Communities Act 1972 then it would seem to follow by analogy that the Royal Prerogative could be used to in the context of Scotland leaving the UK, because it is submitted that if the Prerogative can be used to invoke Article 50 which is not an international treaty but part of the domestic law and so effectively repeal the European Communities act 1972 the same process could be used by the Scots government to revoke the Scots Act of Union of 1707.
This could be by the Scottish Government using the Prerogative power to revoke the international treaty (the Articles of Union) and thence by implied repeal revoke the Act of Union. This in turn naturally raises the question of whether the Scottish First Minister could use the Prerogative in this way.
In principle I do not see why this would not be possible.
First, the pre-1707 Scots monarch enjoyed the Prerogative and the Articles of Union were made under the prerogative.
Second, the post-devolution Scots monarch is bound by the advice she receives from the Scottish Government.
If the Scottish Parliament, after a referendum vote for independence, passed an Act instructing the First Minister to revoke the Articles of Union or if the First Minister were simply to use her right to advise the crown, the sovereign would be obliged to comply. Once the Articles are revoked, so too would the Act of Union be revoked. Thus Scotland could leave the Union without the permission of the Westminster Parliament and Westminster could not stop it!
Readers of this post will be wondering how this works in terms of the devolution settlement. Is the constitution not a reserved matter under the Scotland Act 1998? Let us consider the relevant provisions of the 1998 Act, namely section 30 and Schedule 5.
SCHEDULE 5 Reserved matters
Part I General reservations
1 The following aspects of the constitution are reserved matters, that is—
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom,
(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.
2(1) Paragraph 1 does not reserve —
(a) Her Majesty’s prerogative and other executive functions,
(b) functions exercisable by any person acting on behalf of the Crown, or
(c) any office in the Scottish Administration.
Note that under paragraph 2(1)(a) the Prerogative is expressly declared not to be reserved. Therefore there seems nothing in law to prevent the Scottish Government exercising their Prerogative powers to revoke the Articles of Union and hence the Act of Union!
Perhaps those arguing in favour of the Prerogative’s role in the UK exiting the EU should think carefully about its potential role in Scotland exiting the UK, as the royal prerogative might be an equally powerful means for the Scots people to leave the UK. This analysis of the Prerogative would allow Scotland to leave the UK without the permission of the British Government and Parliament. A sovereign people would thus achieve their independence by means of the prerogative powers of their sovereign.
This blog post is by Scott Styles.