Brexit illegal without Scots’ vote?

In a written submission to the Supreme Court, Scotland’s Lord Advocate, James Wolffe QC,  argues that Holyrood’s consent should be sought over legislation invoking Article 50. The conclusions to the 58-page document are reproduced below:


87 The purported giving of a notification under Article 50 TEU by unilateral act of the Crown in right of the Government of the United Kingdom would be unlawful because it would:

(1) be contrary to the Claim of Right Act 1689 and to article XVIII of the Acts of Union 1796 and 1707

(2) result in a fundamental alteration of the constitutional arrangements of the United Kingdom, including the constitutional arrangements applicable to Scotland, by removing the UK from the EU and be effecting a significant change in the devolution settlement;

(3) result in the people of Scotland (including UK citizens resident in Scotland and EU citizens from other Member States resident in Scotland) and Scottish businesses losing rights and freedoms which they currently enjoy;

(4) result in changes to the powers and functions of the Scottish Parliament and Scottish Government and changes to the laws applicable in Scotland including laws with devolved competence; and

(5) circumvent the requirement for the UK and Scottish Parliaments to address whether, under established constitutional convention, the consent of the Scottish Parliament should be sought for such changes.

88. For these and the following reasons, as well as the reasons given by the Divisional Court, the Court should dismiss the appeal and adhere to the decision of the Divisional Court.

BECAUSE the decision to withdraw from the EU and to notify that decision to the Council cannot be made by an exercise of the prerogative alone; and

BECAUSE the constitutional requirements of the UK for taking such a decision include: (a) and Act of Parliament; and (b) the Legislative Consent Convention.

Cite this article as: David Pocklington, "Brexit illegal without Scots’ vote?" in Law & Religion UK, 26 November 2016,

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