Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

  • My Lady, my Lords, this (Inaudible, off microphone), with four questions, and they are set out in the bundle at page 23674 is question four and over the page at 75 --

  • Could you give me that page number again.

  • It is 23674 for

    devolution issues one to three and then over the page at

    5 is number four. The McCord question referred by the

    Court of Appeal, one finds in the McCord core volume 1

    at page 24232.

  • I am conscious, my Lady, my Lords that obviously time is tight. In respect of devolution questions three and four, that is whether the prerogative, if it is operative, has been significantly interfered with by aspects of the 1998 Act, I am sure that doesn't do it justice, and the section 75 point, I am content to rely on our written submissions in respect of that and to adopt the written submissions on behalf of the Secretary of State for Northern Ireland, which are rather fuller than my own.

    These are all submissions that address devolution question one and two and the McCord question. And then I would like to conclude with making some general observations because obviously the outcome of, if I can call it the Miller litigation, is relevant, particularly for the Northern Ireland case, especially as respects the second devolution question.

    Can I start with the McCord question.

  • The McCord question asks, potentially, whether the triggering of Article 50 by the exercise of prerogative power without the consent of the people of Northern Ireland impedes the operation of section 1 of the Northern Ireland Act 1998. Can I ask the court to look at Northern Ireland authorities, volume 1, and at tab 3, where one finds the Act. I should say and I hope it is of assistance and I hope that I stick to it, that the only authorities volumes that I will be referring to are Northern Ireland authorities, volumes 1 and 9.

  • 1 and 9 and core authority volumes 1 and 4.

  • That is helpful, thank you.

  • Could I ask your Lordships and your Ladyship to look at the Northern Ireland Act 1998 --

  • Just a moment we are just trying to catch up with Northern Irish volumes, are they in the memory stick somewhere.

  • Can you give us the MS numbers.

  • It is in a separate electronic file.

  • There are three electronic files, the main one, an additional one in Miller, and the Agnew.

  • And the Northern Ireland Act is at 20001.

  • Section 1 is at MS 20044. And the McCord case is about section 1 of the 1998 act.

    Now, section 1 deals with three things. Officially it confirms the existing status of Northern Ireland as part of the United Kingdom. Secondly it provides that there is to be no change in that status without a majority of people voting that way in a referendum held for that purpose; schedule 1 makes provision for that. Then thirdly, in subsection (2), it makes provision for effect being given to the wishes of the majority if the majority, voting in such a poll, express a wish to leave the United Kingdom.

    It is entirely and exclusively about the status of Northern Ireland within the UK, and we say that not even the most daring eisegesis transforms the provision that is addressed solely to the status of Northern Ireland as part of the United Kingdom into a provision that is also somehow about the EU membership of the United Kingdom.

    Naturally, a variety of factors will come into play to determine the relative electoral attractiveness of the options that are available to voters in Northern Ireland if a poll is held under section 1 of the Act, but they -- any factor that makes it more or less attractive to vote one way or another in a poll held for the purposes of section 1, does not, to use the words of the McCord issue, impede the operation of section 1 of the 1998 Act. In fact that is precisely what section 1 is designed to accommodate and to address.

    So we say that the answer to the McCord question is simply no.

    I am now going to turn, my Lady and my Lords, to the first of the High Court devolution issues and that is whether any provision of the Northern Ireland Act excludes expressly or by necessary implication the operation of prerogative power to give notice under Article 50, and I am going, if it is convenient, to approach that under four headings.

    Firstly I am going to look briefly at the assistance that one has to the interpretation of the Northern Ireland Act 1998, and secondly and thirdly I am going to look at the Belfast agreement and the British-Irish agreement, and then fourthly I am going to, I hope speedily, go through the 1998 Act and draw attention to the EU aspects that might be said to be contained within it.

    So firstly, then, to the interpretative approach to the Northern Ireland Act 1998. Lord Bingham in Robinson famously, and I know the court has been over this, observed that the Northern Ireland Act 1998 is in effect a constitution, which Lord Hoffmann in the same case was a little bolder and described it as a constitution. He suggested that these provisions should be interpreted generously and purposively. For the note, Robinson is in core volume 4 at tab 81.

  • Can I make a summary, which -- I can go through the authorities in some detail if this is required but can I say that it seems to me that the trend of constitutional interpretation since 2002 has been to place perhaps rather more emphasis on a purposive interpretation than a generous one, and your Lordships and your Ladyship will have seen the reference in our printed case to the Local Government Byelaws case and to the Recovery of Medical Costs for Asbestos Diseases case.

    Famously in the Asbestos Diseases case, there was -- argument on behalf of the Welsh Government for a generous interpretation was rejected, and in summary, the position seems to be that merely because a statute is quite properly to be classed as a constitutional statute, it really does not mean that it is interpreted in any different way. The emphasis is on the purpose. Of course the purpose --

  • Is there a distinction to be drawn between the use of the expression, constitutional statute, or as Lord Bingham put it, a constitution?

  • Of course in the HS2 case, this court has assigned a particular significance to constitutional statutes in that they are protected against implied repeal. When one looks at the trend since 2002, and of course I bear the scars of Robinson on my back, it seems to me that constitutional -- whether or not an act of the Westminster Parliament is a constitution or not, that does not attract to it significantly or materially different rules of interpretation.

  • I wonder if it may depend on the issue. The more recent cases that you have referred to, to do with mostly Welsh devolution, have been cases where there was a question of where to demarcate the powers of the devolved budget on the one hand and the powers reserved to Whitehall or Westminster on the other hand, and in that situation you cannot really take a generous view on one side of the equation without taking a narrow view on the other.

  • The court has simply applied ordinary principles of statutory interpretation. On the other hand, in Robinson and also I think in the Scottish case of Axa, the court had a more fundamental issue to deal with; obviously in Robinson whether or not the assembly could be established in accordance with the statutory timetable, and in Axa about the scope for judicial review of devolved legislation. The court did take a rather more -- generous is one way of putting it, but a different sort of approach, conscious of the fact that these were constitutional fundamentals of new institutions that it was having to decide.

  • Well, I would suggest that there is a distinction between the Robinson case and the Axa case. Axa, at least insofar as I understand my Lord's reference, is really about the decision of the court about the extent of the irrationality standard of review, because otherwise Axa should be a question about competence, in relation to the classic limitations on all of the devolved parliaments' EU law, the conventions and so forth.

    Robinson is an enormously important case and I will tie, I hope, this in towards the end of these submissions, but if I can flag up the issue, it is that Robinson is about letting government work.

  • Lord Bingham says that in terms.

  • Yes, he does, paragraph 11 and 12 of Robinson.

  • I will come back to it in the conclusion, because I do think that is enormously important for this case overall.

  • Just to go back to my question, is there any distinction as are they to be assimilating a constitutional status according to the statute, or is it to be regarded as a constitution?

  • A constitution will also benefit from the status of constitutional statute, and not every constitutional statute is a constitution. The Human Rights Act, enormously important constitutional statute, isn't a constitution. The Northern Ireland Act 1998 is a plainly a constitution, and the House of Lords has told us so, so I am not sure there is a huge distinction, particularly bearing in mind the approach to interpretation will always be context specific, but may not in fact differ from the approach one would take to another statute. That is plainly not constitutional in nature.

    So if I can then turn to the Belfast agreement, that is in the Northern Ireland authorities, tab 14. It is the first volume, sorry, my Lords, of the Northern Ireland authorities at 14.

  • (Pause)

    It is not a particularly good omen, I am afraid. I break the rule very early on, it is --

  • The MS number is 20,342 if that is of any assistance.

  • It is, I am very grateful. I was not proposing to take the court through that, simply to draw attention to the fact that at the end of the tab, one has the British-Irish agreement. So at MS 20373.

  • The Belfast agreement is not an international agreement; it is a political agreement hammered out after extensive negotiations. It has an interplay with the British-Irish agreement which we will come to, but, and since the Northern Ireland Act was enacted, at least in part to give effect to it, the Belfast agreement is plainly relevant to the interpretation of the Act.

    There are some references, of course, to European Union law in strand two.

  • Strand two in the Belfast agreement at paragraph 17.

  • Have you got the page number?

  • 54, isn't it -- oh, I see --

  • This is dealing with the North South Ministerial Council, the council to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework:

    "... arrangements to be made to ensure that the views of the council are taken into account and represented appropriately at relevant EU meetings."

    So one can even see from, if one likes, the prose style of paragraph 17 of strand two, it is not drafted as a statute. It is a political agreement and it bears that stamp on its face. Paragraph 17 apparently assumes that relevant background that both Ireland and the United Kingdom will be members of the European Union.

    But the consideration that is referred to in paragraph 17 can continue to occur whether or not the United Kingdom remains in the European Union as long as Ireland does. Paragraph 16 of strand two might indeed be denuded of effect if both Ireland and the United Kingdom were to leave the European Union, but as long as one state remains, there will in all likelihood remain EU matters to be discussed.

    The two work streams under paragraph 17 to consider, arrangements to be made, are of course subject to a criterion of relevance, and even if the UK were to withdraw from the European Union, there would still be matters with a European Union dimension to discuss, and it could still be appropriate for the views of the North South Ministerial Council to be represented at relevant EU meetings.

  • It is difficult for you in the short time available to know what to major on, but Dr McGleenan has dealt with this in detail and so have you. We have read all this. There are these references, and the argument is they simply don't carry the argument far enough.

  • I won't spend more time on this.

    I then ask the court to look then towards the end of the tab at the British-Irish agreement which is the international law agreement, and of course the trite proposition that it is binding as a matter of international law does not itself have domestic effect; and the only reference, of course, is in the third recital, as friendly neighbours and as partners in the European Union, 20373; and again, no operative part of the British-Irish agreement can be remotely construed as containing the least commitment to remaining in the European Union; and even if it did, absent some domestic limitation, binding only at the level of international law.

    Of course as I have mentioned, the Belfast agreement is not a statute, not drafted as a statute; it is a political text. In Robinson, if I could ask the court to perhaps keep the Belfast agreement open and this time to keep it open at strand one, at paragraphs 3 and 4 of strand one, which are at page 20348. Then if the court would look very briefly at the passage from the opinion of Lord Hoffmann in Robinson at paragraph 26, so that is core authorities, volume 4. And the report begins at 3272.

  • If one goes to paragraph 26, this is Lord Hoffmann, 3284:

    "The agreement provided that the assembly was to be the prime source of authority in respect of devolved responsibilities and would exercise full legislative and executive authority."

    That is Lord Hoffmann's quotation from paragraph 3 of strand one.

    Of course, almost certainly my fault because I should have pre-emptively attempted to correct him, but when one looks at the Northern Ireland Act, that flatly contradicts what one finds in that provision. If one looks at section 23 of the Northern Ireland Act, at Northern Ireland authorities volume 1, page 20068, 23, subsection (1):

    "(1) The executive power in Northern Ireland shall continue to be vested in Her Majesty.

    "(2) As respects transport matters, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall, subject to subsection (3) ..."

    It deals with the Civil Service Commission, the exercise, on Her Majesty's path, of any minister or Northern Ireland department.

    So not only does in this important respect the Northern Ireland Act not implement this aspect of strand one, it flatly contradicts it.

    So the purpose of that really is --

  • Which was the bit you should have corrected in Robinson?

  • It is paragraph 26 of Robinson, where Lord Hoffmann quotes paragraph 3 of strand one of the Belfast agreement.

  • Your point in a nutshell is that was not translated into the Northern Ireland Act.

  • And flatly contradicted by it.

    It points to the use of caution, that must be exercised, we respectfully submit, when attempting to use the Belfast agreement as an aid to construction. It is undoubtedly of use but it must be approached with some caution.

  • Sorry, which bit of paragraph 26 do you say is wrong -- is it 26 really?

  • It is the quotation, he quotes with apparent approval a passage from paragraph 3 of strand one about the assembly being the source of the legislative and executive authority.

  • Full executive responsibility, is it?

  • Again, it is the standard constitutional position that all prerogative and executive authority comes from the Crown. One can perhaps see why a political agreement took a different view, but when it came to drafting the statute, which is what matters, the correct constitutional orthodoxy was expressed.

    While of course the constitutional status of Northern Ireland is given protection, as respects membership of the United Kingdom in section 1, there is no protection in the 1998 Act, or any provision even addressing membership of the European Union. Consistently with its status as a constitution for Northern Ireland, the Northern Ireland Act, in a number of places, imposes limitations on legislative competence, on the competence of ministers, but -- and it does also confer certain powers and duties on the Secretary of State for Northern Ireland. No provision in the Northern Ireland Act purports to limit or has the effect of limiting the powers of the United Kingdom Government in international affairs.

    There is no provision of the 1998 Act, nor any part of the Belfast agreement, nor the British-Irish agreement which, however they are constructed and taken apart singly or collectively, which imposes any constitutional requirement, the word used in the claimant's case, which the UK Government must satisfy before giving notice under Article 50.

    I won't open it to the court but the North/South Cooperation (Implementation Bodies) (Northern Ireland) Order 1999, and that is in tab 8 of the Northern Ireland authorities, does no more than give effect to another international agreement which is set out in schedule 1 to those regulations.

    Article 1 of that agreement establishes the special EU programme body, and part 5 of the regulations gives domestic effect to the agreement as respects the EU programmes body.

    To suggest that anything in the 1999 regulations prevents the prerogative being used to give notice under Article 50 is to ignore the role of the prerogative in creating the EU programmes body.

    Plainly the Northern Ireland Act 1998 can only be amended by or under another Act of Parliament, and we say simply that notifying the European Council under Article 50 will amend not a comma or a full stop of the 1998 Act. That is true of all of the Act's provisions, but I can look at perhaps nine of them, because they seem to have, in the eyes of the Agnew claimants, a particular significance, so that is section 6, section 7, section 12, section 24, section 27, section 98, section 14 and sections 26 to 27.

    Starting with section 6(2) --

  • If you are going to take us through all of them, you may run into a bit of time trouble. It is up to you; I am aware how attenuated your time is.

  • I am acutely conscious of that, my Lord, so can I simply make that -- the claim that these expressly or by necessary implication dislodge the prerogative is defeated by a simple reading of those provisions.

  • Speak for themselves effectively.

  • The syntax and punctuation remain intact.

  • They do, and much more than that, my Lord.

  • In a sense, we are looking for a dog that doesn't bark; we are looking for no bark and you say we will not find any barking in any of it.

  • Yes, and again, the argument here is not one of textual exegesis; it is one of eisegesis; it is putting stuff in that simply is not there.

  • Then can I look perhaps to -- and tie together some general themes. In the United Kingdom, we have an essentially political constitution. That is to say we don't have a written constitution of the kind, for example, contemplated by my Lord, Lord Neuberger in his Lord Rodger memorial lecture, written text which can only be interpreted authoritatively and definitively by our independent judiciary.

    Our constitution is shaped by historic and daily practice, and whether or not something is constitutional is primarily determined, we say by Parliament. In our constitution courts do not make or remake the constitution and legitimate judicial law-making, and of course it occurs, but especially in the constitutional sphere, must be interstitial.

    Obviously I will not take the court to the Bill of Rights or to Godman-Hales, but if I can give a thumbnail in relation to Godman-Hales, the point with Godman-Hales was that Godman-Hales was the then constitutional orthodoxy. It was orthodox to dispense from the operation of penal statutes. The judges in Godman-Hales, and there was a judicial consensus in favour of the King dispensing power, in favour of Colonel Hales. The revolution, and it was a revolution, was one effected by the convention, by the convention Parliament, and where revolutions occur in our constitutional order, they are the product of the representative institutions.

    Historically, the judicial role in the shaping of the constitution has been modest, and judges, as Lord Bingham famously pointed out, did not establish the doctrine of parliamentary sovereignty and they cannot by themselves change it. That is tab 108 of the rule of law. Obviously, speaking extra-judicially, others, clearly members of the court have taken a different view.

  • Lord Steyn in Jackson for example.

  • Indeed.

    Now, the enduring value, we say, of the Robinson decision, the decision of the majority in Robinson, is what it says about larger constitutional principles. I want to draw attention to two of them. In Robinson, core authorities volume 4, the report beginning 3272, paragraph 11.

  • At 3280 and Lord Bingham, perhaps channeling the first Duke of Wellington, includes as a constitutional ideal that government should be carried on.

    The majority in Robinson was surely right to adopt an approach that approved a constitutionally plausible course of conduct. Paragraph 12 is one which I particularly, with respect, commend to the court:

    "It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of ... pre-determined mechanistic rules to be applied as and when the particular contingency arose, but such an approach would not be consistent with ordinary constitutional practice in Britain."

    Then of course one sees how this has become dated with the advent invent of fixed Parliaments.

    The last sentence is important:

    "Where constitutional arrangements retain scope for the exercise of political judgment, they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude."

    That is an approach I respectfully commend to this court.

    With respect, the first claimant is wrong, we say, as she does in her printed case, the outcome of the referendum and the Government's stated position with respect to that are not matters for the court. In our political constitution, these constitutional features cannot be overlooked.

    So while, of course, the determination by the Government of the United Kingdom that the constitutional requirements of the United Kingdom were met if notification under Article 50 is given under the royal prerogative is of course a justiciable question, in so far as the court can quite properly be asked to look at that question, a determination of this nature should be regarded as constitutionally proper unless shown to conflict clearly with statute.

    Or, to put the matter another way, unless it can be shown by the claimant, or those on that side, that some statute expressly, or where by necessary implication, has taken away the prerogative in that sphere.

    Our constitution, quite rightly, does not acknowledge executive supremacy any more than it does judicial supremacy but it does acknowledge the present and historic capacity of the executive, accountable as it is to Parliament to shape our constitution. The English constitution before 1707, the Irish constitution before 1800, the Scottish constitution before 1707, and now the constitutions of Great Britain and the United Kingdom have been shaped primarily by the interplay between the Crown and representative institutions. Practice or convention are important elements of the UK constitution but obviously must yield to statute.

    Of course public law barristers in private practice -- and this is in part a confession -- are fond of yielding to the Archimedean temptation that a well placed litigation lever can move the world, and of course there are occasions when litigation can produce extraordinary results, but this should not normally occur in constitutional matters. Constitutional change in a constitution such as ours is primarily and overwhelmingly a matter for the politically accountable actors in it.

    I want to conclude, my Lady and my Lords, by saying something about what we say is the skewing and distorting effect created by the bullet from the gun analogy. It is of course all rather slower than that. The gap between pulling the trigger and what happens at the end is an enormously important gap, and possesses some significance, but can I invite the court to consider this. Assuming that the two-year period prescribed by Article 50(3) is not extended, and assuming, as all of the claimants appear to do, the consequences for the three categories of rights in paragraphs 58 to 61 of the divisional court judgment, those consequences are not the result of notification under Article 50 but would be, on the claimant's case, consequences of leaving the European Union. Of course the law cannot be changed, save directly or indirectly by Act of Parliament. Yet the assumption, and we say it is an unjustified assumption, on which the divisional court rests is that any law, that is statute, that would be necessary to avoid these consequences if indeed they exist would not be made.

    This could be tested a little through the European Parliamentary Election Act 2002 and that is in core authorities 1, beginning at 6550. As matters stand at present, the next election to the European Parliament will be held in 2019. Insofar as there is a domestic law right in suitably qualified persons under the 2002 Act, and I must say it is not clear to me that there is, to stand for election to the European Parliament, that right could not be taken away by the giving of notice under Article 50. If, depending on the timing of that notice, the events contemplated by Article 50 had not occurred before the date of the 2019 election to the European Parliament, anything that the 2002 Act required to be done would have to be done. There would be a proper complaint of domestic illegality if it were not done.

    On the other hand, no rights that are derived only from the 2002 Act alone are lost by withdrawal from the treaties. If the treaties ceased to apply pursuant to Article 50(3), that doesn't mean that use of the royal prerogative to get notice has repealed or undermined the 2002 Act. It simply means that with the inapplicability of the treaties, the 2002 Act is no longer a particularly useful part of the statute book or a useful portal, which is the term which we use in our printed case.

    Since this an abstract case, because giving notice gives rise to the consequences in terms of representation and Government participation in Europe, but notice by itself has no effect whatsoever and the assumption that -- and, certainly, one can see that giving notice may give Government and Parliament more work to do -- but the assumption that that necessary work, if it exists, won't be done, is one on which the claimants' case rests and we say it is a platform which, when examined, falls away.

  • Does that amount to saying that it is necessary to restore precisely the present position and that this will be done?

  • No, not at all. But take for example --

  • Then it must follow that you are accepting that there is some effect of the notice which is given?

  • Of course not, it is notice plus time. We know there a two-year period but --

  • The question is, what happens? So, for example, I think the 2002 Act is a useful case study, so plainly if for whatever reason notice is delayed and the 2019 elections come around, then individuals who are interested can dust down their copies of the treaties and the 2002 Act, and say, "I would like to stand", and --

  • That simply demonstrates that, during the two-year period, the position remains unchanged. What I don't understand is what you are saying about restoring the position by necessary legislation, which couldn't just be domestic, it would have to be international agreements to restore some of the reciprocal arrangements and so on, wouldn't it?

  • Of course, but if it is necessary, and that is why I return to the 2002 Act, because plainly if notice had been given a month before the elections, the relevant period for giving notice of one's intention to stand as a candidate in the 2019 elections -- it would be absurd, one would imagine, for Government to run an election that was going to plainly serve no useful purpose when the two-year period had run its course but the Government couldn't dispense back to Godman-Hales with the 2002 Act, it would have to do something about it by another Act of Parliament.

    So my point, my Lords and my Lady, is simply that, that there might well be work to be done by Parliament and Government but the assumption that it wouldn't be done is one that it is not proper to make.

    So, my Lords and my Lady, unless there is anything else, those are our submissions.

  • Thank you very much, Mr Attorney. Thank you. We appreciate you managing to accommodate your submissions in that relatively short time.

  • Thank you.
    Lord Pannick.