UK failure to intervene in Irish Sea dispute 'bizarre', but doesn't help legal arguments in favour of Scottish independence referendum

The UK Government’s failure to intervene and overturn a Stormont minister’s order to stop Irish Sea goods checks is likely to be used by the Scottish Government in future disputes, experts have said.

However, the decision by Northern Irish secretary Brandon Lewis is unlikely to help the SNP legally justify any referendum bill passed by Holyrood and does not change the basic legal arguments.

Mr Lewis said on Wednesday halting Irish Sea goods checks, required under the Brexit deal, was a matter for the Northern Irish Executive.

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The push for independence will not be helped by the actions of the UK Government in Northern Ireland, constitutional lawyers have said.

This led to speculation such a statement opened doors to Scotland to make policy choices on reserved matters, given the UK Government’s apparent choice to back non-interference.

Some asked whether this could impact a future legal dispute around a referendum bill, but legal experts suggested it was unlikely to have any real impact on any potential Supreme Court challenge.

Aileen McHarg, professor of public law at Durham University, said a devolved nation such as Northern Ireland breaching an international treaty was not necessarily it acting outside of its powers (ultra vires).

She said the move would be likely challenged via judicial review due to the specific requirements of the EU Withdrawal Agreement, but that it was unlikely to impact the discussion around independence.

Prof McHarg said: “I suppose that there is an issue of consistency as to whether the UK Government chooses to intervene, or not, to enforce the limits on devolved competence/compliance with international law.

"But it is not under any duty to intervene, either in relation to Bills or executive action, and whether or not it chooses to do so will inevitably be coloured by political calculation.

“If the UK Government chooses to refer a future indyref Bill to the Supreme Court, its failure to take action on other occasions will be neither here nor there.”

Tom Mullen, a professor of law at Glasgow University, said the UK Government’s position was “absurd”.

He said: “The intervention by Brandon Lewis is frankly bizarre because he is simply saying this is a matter for the NI Executive, as if a blatant breach of a treaty obligation that has been translated into domestic law is somehow of no concern to the UK Government.

"You just have to say that to realise how absurd that position is.

"I’m not surprised that Nicola Sturgeon is tweaking the UK Government’s tail over this position and asking ‘could the equivalent arguments be used in relation to Scotland’? But at the end of the day it makes no difference to the legal arguments.

"These things are potentially politically embarrassing for the UK Government because it does suggest a certain inconsistency, but it doesn’t make any difference to legal arguments about indyref2.”

Ciaran Martin, who was a senior civil servant in the David Cameron government and one of the architects of the Edinburgh Agreement, said the comments would likely be used by Scottish Government lawyers in future disputes.

He said: “A strange remark from a secretary of state doesn't change the law. It's unlikely to change the legal position on an independence referendum.

"However, expect this novel interpretation to be quoted back at the UK Government if it ever takes the Scottish Government to court again over something to do with international affairs beyond its apparent devolved competence".

Want to hear more from The Scotsman's politics team? Check out the latest episode of our political podcast, The Steamie.

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