CAN THE SCOTTISH PARLIAMENT AND GOVERNMENT BE REGARDED AS LEGALLY ‘ENTRENCHED’ FEATURES OF THE UK CONSTITUTION?

As a result of the enactment of the Scotland Act 2016, the Scotland Act 1998 (as amended) includes the following provision:

PART 2A Permanence of the Scottish Parliament and Scottish Government

63A     Permanence of the Scottish Parliament and Scottish Government

(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.

(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

(3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.”

In the light of the United Kingdom’s pending exit from the European Union, the Government is keen to present ‘Brexit’ as a reassertion of the sovereignty of the Westminster Parliament. The Secretary of State for Exiting the European Union seeks your advice as to the implications of s.63A for the doctrine of parliamentary sovereignty.

Specifically, the Minister seeks your responses to the following questions:

(i)         Considering both the applicable case law and commentary, can the Scottish Parliament and Government be regarded as legally ‘entrenched’ features of the UK Constitution?

AND 

(ii)        In the light of the United Kingdom Supreme Court decision in (Miller) v Secretary of State for Exiting the European Union, what are the implications of viewing s.63A as a ‘political restriction on the activity of the UK Parliament’?

Part (i) is worth two-thirds of the marks for this question. Part (ii) is worth one-third.

Word limit: 1,500 words

(including footnotes and appendices, excluding bibliography, contents, tables of cases and title pages

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