As speculation about whether Parliament’s consent is required in order for Britain to leave the EU following last week’s historic referendum, Aidan O’Neill QC of Matrix Chambers told Scottish Legal News that Parliament must give its view and mandate the UK government accordingly, adding that until it does so we have not made a decision to leave and that – if there is a dispute – it would be a matter for the Court of Justice of the European Union to decide.

In contrast to other legal commentators who have expressly said no Parliamentary vote is needed, Mr O’Neill said: “Article 50(1) TEU says that the decision to withdraw has to be made by states in accord with their own constitutional requirements. Because of the sovereignty of Parliament doctrine the Brexit referendum result can only ever be advisory of the opinion of the people rather than constitute of itself a binding constitutional or legal ‘decision’.

“And although treaty issues are formally a matter for the Executive quaCrown, the issues involved in this matter are too important for Parliament not to be consulted and give its view. Until it does so and mandates the government accordingly we have not made a decision to leave. If there is really a dispute about this then it would be a matter for the CJEU to determine.”

Mr O’Neill added that Scotland has the opportunity to forge links with the EU and that doing so could cast the Brexit episode as one of England’s own fundamental problems, writing: “In the next three months or so while the Tory party seeks a new leader and England goes into meltdown in trying to gauge what so ailed the country, Nicola Sturgeon has an opportunity now to forge strong positive links across Europe and among the big players within the EU institutions to push the idea that what has happened is not that the UK as a whole has voted to leave the EU but that England has voted to secede from the Union (both British and European) leaving Scotland (possibly in confederation with NI) as the faithful remnant ready and able to maintain their EU membership which needs only to be slightly re-jigged, but not fundamentally altered, to take account of England’s (& Wales’) secession.

“This then becomes a positive story from an EU perspective showing that the Brexit vote result was not because there are fundamental problems with the EU but there are fundamental problems with England which may be summed up as England has a problem with London and London a problem with England.”

He added that if First Minister Nicola Sturgeon can negotiate a package, in principle, for Scotland then this could become part of her argument for a second independence referendum.

A victory in a second independence referendum would mean a “soft transition” for Scotland, “involving ending the British Union but maintaining the European Union, while England is left to wrestle its nationalist demons unencumbered by its northern Celtic fringe of which it knew increasingly little and cared ever less”.

Looking ahead to such an eventuality, he concluded: “Conrad Russell once observed that the fundamental problem with the Treaty of Union was that England would brook no equal and Scotland no superior.

“If Scotland stays in the EU then like Ireland it might begin to grow up and de-infantilise and lose its readiness to play the exploited victim. And England will at last, guilt free, get to be England. The English truly get their country back, whatever that might turn out to be.”