Could Scotland Block Brexit?

There have been reports in the media that Nicola Sturgeon is threatening to use the Scottish Parliament to block Britain’s withdrawal from the European Union. It’s a bold claim, but could it actually happen?

At the heart of the issue is something called a ‘legislative consent motion’ (also known as a ‘Sewel motion’). They are used when the British Parliament wishes to legislate on a subject that would ordinarily be handled by the Scottish Parliament, or when the Scottish Government wants the British Parliament to extend England-only legislation to Scotland. Sturgeon believes that Brexit will necessitate a legislative consent motion, and she has said she could instruct her MSPs to vote against it.

However, this plan has a number of problems. First of all, it’s not clear that a legislative consent motion would be necessary since matters relating to the European Union are reserved to Westminster under paragraph 7(1) of Schedule 5 of the Scotland Act 1998. Even if a legislative consent motion were deemed necessary for some reason, its failure to pass would not necessarily prevent Britain from leaving the EU. That’s because it’s basically a constitutional courtesy. The Westminster Parliament retains ultimate legislative authority over the whole of the United Kingdom, and it could proceed with Brexit legislation without MSPs’ consent. Obviously, that would anger a lot of people in Scotland, but allowing the Scots to scupper Brexit would anger a lot of people in England and Wales. Since England and Wales contain the vast majority of the UK’s citizens, the Government would likely side with them.

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