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Advocate General challenges Society over Brexit bill briefing

20 February 2017

The Law Society of Scotland has defended its apolitical stance following reports that the Advocate General for Scotland criticised a briefing issued by the Society over the bill to authorise notification of the UK's withdrawal from the European Union.

Lord Keen of Elie QC, the Advocate General, reportedly instructed a complaint to the Society that comments on the bill were "political rather than legal" and not balanced. It is thought this referred to a paper by Michael Clancy, the Society's director of law reform, outlining the position of the Society's Constitutional Law Subcommittee. This noted that the UK Supreme Court, in the recent Miller appeal, had taken the view that the consent of the devolved legislatures was not required before the bill was passed at Westminster, but added that the judgment was "not the authority for interpreting the scope of the Sewel convention".

Under the convention, Westminster will not normally pass laws with regard to devolved issues without the consent of the Scottish Parliament. The Supreme Court stated that although it was incorporated into the Scotland Act 2016, the convention was "a political rather than a legal rule" and "not justiciable in the courts".

Mr Clancy's briefing suggested it was arguable that the bill did engage the convention, a view discussed in contributions in this month's Journal: click here and here.

According to a leaked email, the Advocate General took the view that the references to the Miller case – in which he appeared for the UK Government – were "selective".

In a statement the Society said: "All of our work is apolitical and impartial. We will continue to engage with both the UK and Scottish Governments over the coming months."

SNP MP Joanna Cherry QC claimed the Society's comments were accurate, and described Lord Keen's comments as "typical of the UK Government's hubris over Brexit and their desire to silence any meaningful debate or scrutiny".


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