The Scottish government accepts that the formal EU negotiating role belongs constitutionally to the UK but maintains that it is also clear that Scotland’s political history and current constitutional framework make it imperative that Scotland's distinctive voice and views are heard loud and clear in London and throughout Europe.
To read the full document please visit http://www.gov.scot/Publications/2016/11/4961
The Lord Advocate - James Wolffe QC - has been granted intervener status in the UK government's appeal to the Supreme Court - see Scottish Legal and also previous post
The Guardian 21st November reported that the Scottish government planned to use the Claim of Right Act 1689 as part of its intervention. This is an Act of the pre-Union Scottish Parliament. It notes that King James (VII of Scotland) had not ruled by the "fundamentall Constitution of this Kingdom" and had altered it from "a legall limited monarchy to ane Arbitrary Despotick power." Full details of the Lord Advocate's intervention are awaited and so it remains to be seen whether the Claim of Right Act will be deployed and, if so, how. The argument appears to be that the Act codified the “radical revolutionary tradition” in Scotland that a monarch was always answerable to the law and the people, in this case its parliaments.
In the Miller case in the High Court (London) the court noted that (para 19) - "Although this court only has jurisdiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown's prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic."
The Scottish Parliament and Government can enact policies and legislation in major areas of domestic policy known as 'devolved' matters. Other areas, known as 'reserved' matters remain the responsibility of Westminster and the UK Government but many of Scotland's devolved powers are also affected by EU law.