The First Minister’s derided visit to the Republic may prove to be very astute, writes Lesley Riddoch
It’s a big day for Scotland, British democracy, Brexit and the 11 judges of the Supreme Court, who sit together for the first time this century to decide if Theresa May must consult Parliament before triggering Article 50.
Whilst importance does not guarantee interest or even comprehensibility for non-legal onlookers, some major democratic issues are at stake.
The obvious one is whether an Act of Parliament is needed to invoke Article 50 and start the Brexit process.
Clever money says the UK government will lose its appeal but a subsidiary question will be just as important for the devolved nations.
If Parliament must be involved – as the High Court decided earlier this month when it backed Gina Miller’s case – should the definition be stretched to include the legislative consent of assemblies and parliament in Wales, Northern Ireland and Scotland?
Scotland’s Lord Advocate will argue MSPs should be given a vote because Brexit changes the legislative competency of Holyrood and the executive competence of the Scottish government and under the Scotland Act such changes “may not be affected by an act of the executive alone”.
The Counsel General for Wales and the Attorney General of Northern Ireland will make much the same argument and the Northern Ireland Court of Appeal will ask if Brexit needs the consent of the whole Northern Irish people – never mind just MLA’s in Stormont.
Media coverage will doubtless dwell on the messy and chaos-inducing possibility of Leave legislation being forced through two Remain supporting parliaments.
But something else may happen.
The Supreme Court might just force an arrogant UK government to acknowledge the separate will, authority, clout and jurisdiction of Britain’s devolved parliaments.
However disposable Holyrood looks to Theresa May, the law may see things differently and rule that angry First Ministers cannot be ignored, corners cannot be cut, nor founding principles dumped just because they prove inconvenient for Westminster.
When judgment is finally delivered in January, “Parliament” may be redefined as something that extends beyond the Palace of Westminster to include the legislatures of the Celtic nations. That’s a significant development in the slow unravelling of power in centralised Britain.
These cases brought by the Northern Irish authorities may seem to have little to do with Scotland. But their outcomes may be just as important for Nicola Sturgeon.
An opt-out may be more likely for Ireland than Scotland because the impact of Brexit across the water may be more than economically damaging – it might be incendiary.
Put bluntly, any attempt to construct an un-wanted hard border between the European-supporting North of Ireland and the Republic will have to be financed by Britain.
Any wall, border post or bit of barbed wire erected by British troops in Ireland will be seen as an act of provocation by some in the Republican community. If they act, as they inevitably will, the delicate peace process will be destroyed.
The UK government knows this, but has said nothing so far about the massive practical and legal consequences of Brexit in Ireland.
Will the free travel arrangement go, ending the visa free travel that’s allowed Irish and Northern-Irish nationals to work in one another’s country since the 1950s?
What about the customs union? Currently Northern Ireland can export into the EU without customs controls or paperwork. But that will end with Brexit.
Indeed while Scotland’s threat of a second independence vote may be more serious for Britain in the long run, it’s the fate of post Brexit-Ireland that’s concentrating minds in many European capitals.
Ireland was a relatively early and loyal EU member and will remain in when Britain walks out.
So EU members regard any threat to Irish stability as a serious issue, even if Theresa May doesn’t – and that has two important knock-on effects for Scotland.
Firstly, as members of the EU, the Irish can offer Scots valuable intelligence – and no doubt that was part of Nicola Sturgeon’s purpose during her “rock-star” style trip to Dublin last week.
As Ruadhán MacCormaic commented in the Irish Times: “The Holyrood government has often struggled to get direct access to EU discussions on issues such as agriculture or fisheries, where its crucial national interests are at stake. That problem will be magnified by Brexit, where the stakes are higher still.”
An Irish government spokesman said: “It’s very unclear (if) Scotland will get any information coming out of London-Brussels talks, or even internal London talks. So [Sturgeon] and her government see it as important to have a good strong channel of communication to Dublin in order to get information and a sense of what’s on the table.”
But the Scots may also be aiming to piggyback any Irish opt out from full Brexit.
The Irish government spokesman continued: “[Scotland’s] strategy will be to point to areas where their interests coincide with Irish or Northern Irish interests.
There is a similarity in the fact that Scotland and Northern Ireland voted to remain, that Scotland and Northern Ireland have a relationship with the UK but also a crucial relationship with the EU. #
If a Dublin government is going to bat with Northern Ireland’s interests at heart, [the Scots will ask] that we be cognisant that that also equates to Scottish interests.”
In short, Scotland’s priority now is the same as the Irish government.
Each wants an opt-out from the harmful impact of a hard Brexit, but Ireland is in a stronger position to get one, if the succession of visiting dignitaries lately recognising Ireland’s “unique position” is anything to go by.
Last week, Tory MSP Jackson Carlaw dubbed Nicola Sturgeon “Scotland’s Evita” for her many trips abroad. But a powerful, passionate political figure may be exactly what’s needed to win recognition for Scottish interests abroad. Professor Brian Lucey of Trinity College, Dublin, told Saturday’s Good Morning Scotland: “Nicola Sturgeon got a rapturous reception here – the first head of state to be invited to speak in the Upper House.
And she got cross party and unanimous support for her endeavours. It was basically the Upper House saying – you want to go independent, we’re behind you; we’ll hold your coat.
“That was from every single shade of political opinion.
If this is what happens in the Parliament of Britain’s closest ally in Europe, what would happen if the First Minister went to speak in the Italian Parliament or in Poland.”
Quite. Watch this space.