In short: in my completely non-expert opinion, based on plain reading of the Scotland Act and the evidence used to suggest this in the first place, no.
It has been suggested that the Scottish parliament’s consent is required before the Scotland Act can be amended to remove its obligation to legislate in a manner that is compatible with EU law, thus giving the Scottish parliament a potential veto on the legislation required to enact Brexit.
The core of the argument is laid out in the answer to a question put to Sir David Edward KCMG, QC, PC, FRSE in oral evidence to a House of Lords committee on the process of withdrawing from the EU, see question 17:
Q17 Baroness Suttie: I turn to the devolved Administrations. What legislative measures would be necessary to extinguish the application of EU law in the devolved nations? I have a specific question to Sir David, if I may. Do you think that the Scottish Parliament would be likely to grant legislative consent? If they did not, what would be the consequences?
Sir David Edward: The formal consequence is this. Under Section 29 of the Scotland Act 1998 the Scottish Parliament is bound by EU law, and, ditto, under Section 57(2) the Scottish Government are bound by EU law. Under the Scotland Bill that is going through Parliament at the moment, the Sewel convention will be recognised in Section 2 if it becomes an Act. Therefore, as I see it, you would have to amend the Scotland Act and, therefore, you would have to have legislative consent from the Scottish Parliament. I can envisage certain political advantages being drawn from not acceding to the legislative consent—creating difficulties about it. The basis of Clauses 1 and 2 of the new Scotland Bill is to embed power for the Scottish Parliament and the Sewel convention as part of the British constitution. You can say, “All right, maybe so, but we are going ahead anyway”.
I want to note a few things here:
- Sir David was one of two witnesses, and the only one to comment on this.
- He is a former Judge of the Court of Justice of the European Union
- His final comment highlighted in bold looks suspiciously like a get out clause for his answer, and is probably a reflection of the fact that much that happens with the UK’s constitution is done by convention and could be changed at any time by the government of the day.
- The Scotland Act was Parliament’s mechanism for creating the Scottish Parliament, and determining its remit. The Act explicitly preserves Parliament’s ability to legislate in ALL areas, and its ability to override the Scottish Parliament.
By convention, any attempt to legislate to alter the Scottish Parliament’s remit or to otherwise legislate in its areas is done in consultation with the Scottish Parliament, via asking for legislative consent.
It seems to me that whilst Westminster may feel obligated to seek the consent they will also be quite happy to override it, especially on such a critical matter as giving effect to the UK wide vote to leave the EU.
Of course I’m not constitutional lawyer, but a plain reading of the Scotland Act makes it clear the Scottish Parliament is ultimately subordinate to the Westminster Parliament. Also Alex Salmond, former First Minister of Scotland seems to think there is no veto too.