The Scottish Parliament has no power to restrict the sovereignty of Westminster, government lawyers have argued on the second day of a historic constitutional case affecting Brexit.
The Advocate General for Scotland told the Supreme Court that Scotland could not “qualify or abrogate” the UK’s power to trigger Article 50, taking the UK out of the EU.
Richard Keen QC said the Holyrood’s lack of powers over foreign affairs “fatally undermined” the Scottish Government’s claim that MSPs should be given a say on Article 50.
In a potentially wide-reaching legal argument on the limits of devolution, Lord Keen said the convention that Holyrood must give its consent on legislation affecting devolved matters was a “political” arrangement and was “never intended to be a justiciable legal principle”.
Lord Keen told the court it was “perfectly clear” that the royal prerogative applied in Scotland, Wales and Northern Ireland as well as England, and UK ministers could use it to take the UK out of the EU.
He said: “There appears to be clear legal authority for the proposition that there is no material distinction between the foreign affairs prerogative as between Scotland and England.”
With regard to Scottish devolution legislation, he added: “All foreign relations and foreign affairs, in particular all our relationships with the EU, are not within the competence of the devolved legislators.
“There is no means by which you can suggest the exercise of the foreign affairs prerogative is in any way impinged or qualified by devolution legislation.”
Lord Advocate James Wolffe is expected to argue the case for Holyrood to be consulted on Article 50 on Wednesday.