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

  • Good morning, my Lady, my Lords. In addressing the devolution issues, it is necessary to bear in mind that I am addressing those interveners in the Miller case who have raised points with regard to the devolved legislation, and also responding to the devolution issues that have been put forward in the Agnew and McCord cases for Northern Ireland.

    With regard to the latter, I am of course anticipating submissions that are yet to be made, and it may be that on Thursday, I will seek leave to make some short response to any additional points that are made in regard to these matters.

    Your Lordships will have the additional written case that has been submitted with regard to devolution issues. In addition I am grateful to my learned friends Dr Tony McGleenan and Paul McLaughlin from the Northern Ireland Bar for producing a written case in respect of the devolution issues from Northern Ireland. I readily adopt that written case as part of my submission in respect of these matters.

    In the time available, I am not going to attempt to address each of the issues that are raised in the separate interveners' cases, but what I will attempt to do is to address three themes that seem to percolate through all of these cases. Those are, first of all, sovereignty and the prerogative; secondly, the constitutional status of the devolution legislation, and thirdly, the Sewell convention, and attempts to elevate it into some form of constitutional requirement for the purposes of Article 50.

    So taking the first of those, in his written case, at paragraph 30, the Lord Advocate quotes Lord Hope in Jackson v Attorney General on the question of sovereignty. If I can just give references, my Lords, to save time rather than taking your Lordships to and quoting from the particular cases, it is MS 12583, paragraph 30 of his written case.

    Building on this reference, he then goes on to say that Lord Cooper's dictum that the principle of unlimited sovereignty of Parliament is a distinctly English principle, which has no counterpart in Scottish constitutional law, quoting of course from Lord President Cooper in MacCormick v Lord Advocate in 1953. That passage from Lord Cooper's judgment is often cited as a possible exception to the question of parliamentary sovereignty, but it has never gained traction in any court of law as far as I am aware.

    It is, of course, repeatedly referred to in a political context, and I quote from an essay published in 2013 by my learned friend Mr Aidan O'Neill QC, in the Juridical Review of that year, where he observed:

    "Lord Cooper's words, though oft cited by Scottish legal nationalists, have never, in the 60 years or so since they were written, resulted in the courts accepting the validity of any challenge to any provision of an act of the Union or Parliament for its incompatibility with the requirements of the 1707 Union. It may be better, therefore, to regard these remarks as a form of poetic or romantic licence."

    My learned friend Mr O'Neill then submits a written case on behalf of one intervener, the Independent Workers Union of Great Britain, which could be described as poetic or romantic licence, and I refer to part three of that case.

  • I refer to part three of that case, which goes on at some length to establish what he considers to be the sovereignty of the people under Scots law, rather than the sovereignty of Parliament. Again I shall give the reference. I do not intend to take your Lordships through it. It is MS 12658 in core volume 2.

  • What is, however, useful is that in paragraph 3.4 of that written case, my learned friend cites an act of the Scottish Parliament of 1703, (Inaudible) peace and war, which expressly states that:

    "Everything which relates to treaties of peace, alliance and commerce is left to the wisdom of the sovereign."

    In other words, four years after the claim of right, the Scottish Parliament made it perfectly clear that the prerogative right in respect of foreign affairs remained the prerogative right of the sovereign. I have in fact provided a copy of the relevant Act which is in very short terms, as acts of the Scottish Parliament often were at the time.

  • It is not in the bundle, I apologise for that, but for completeness your Lordships do have a sheet with it.

  • It is an unusual pleasure to find a statute that runs to less than half a page.

  • My Lord, it is, by the standards of the Scottish Parliament, quite wordy.

    My Lords, moving from sovereignty, if I may briefly touch upon the question of the prerogative, the equivalent in the law of Scotland and England concerning the control and exercise of prerogative powers was specifically accepted by the House of Lords in the case of Burmah Oil v Lord Advocate which has already been referred to. The case can be found in volume A4, tab 34, or at MS 1313.

    I briefly quote from Lord Reid at MS 1336, where he observed that it does not appear that as regards the issues on the appeal, there is any material difference between the law of Scotland and the law of England, and indeed the law of Burma. He went on at 1345 to observe that:

    "When the prerogative took shape, it was that part of sovereignty left in the hands of the King by the true sovereign, the King and Parliament."

    These points were also underlined by Lord Hodson and Lord Upjohn, and so there appears to be clear authority, legal authority for the proposition that there is no material distinction between the exercise of the foreign affairs prerogative as between Scotland and England.

    I would just finally observe in passing a point made by Lord Keith in the case of Lord Advocate v Dumbarton District Council in 1989, a case with which my Lord Hodge may be familiar as he appeared for the respondent, and the late Lord Rodger appeared for the Lord Advocate.

    Context is everything, I appreciate, but the court had to address the matter of how the Crown prerogative survived in the context of statutory provision, both north and south of the border. The case is at A21, tab 265, and at MS 7384. Because this is a short quotation, I will not take your Lordships to the case, but Lord Keith, after a very lengthy consideration of historical and minute detail on the development of the law, said this:

    "In my opinion the law has developed to a point where it is not helpful to refer to writings of greater or less antiquity which discuss the prerogatives of the Crown."

    It would appear in light of that that one can take the position as having been settled in the case of Burmah Oil. Some later writings are referred to by the Lord Advocate in his case. I would simply notice this, that those writings pertaining to the constitutional law of Scotland that we have make it perfectly clear that the foreign affairs prerogative was considered to be operative under Scots law, very much in the same way as it operates under the law of England.

    I would simply mention these references for your Lordships, first of all Professor Mitchell on constitutional law, it is at volume A37, tab 504, that is the supplementary MS at 908; Professor Tomkins in volume A37 at tab 507; and also an interesting article published by WJ Wolffe, now the Lord Advocate, which is to be found in volume A31 at tab 420.

    My Lords, can I move on from questions concerning the sovereignty and prerogative, as it operates in Scots law, to consider the devolution legislation. My Lords, there is no dispute that the devolution statutes comprise very significant pieces of legislation. Nothing in the issue of Article 50 or its notification or indeed withdrawal from the EU altogether alters the existence of the devolved legislatures, or the essential structure and architecture of the devolution settlements.

    Much emphasis is laid by the various intervening parties on the status of the devolution legislation as constitutional statutes, and I quite accept that they are to be regarded as constitutional statutes, just as the Referendum Act of 2015 should be so regarded, as Lord Dyson has already observed in Shindler.

    I would make one reference to the Inner House decision, that is the Scottish Court of Appeal decision in Imperial Tobacco v Lord Advocate which is at volume A5, tab 41, MS 1592, and in particular to the observations of my Lord Reed in that case where he was invited to take a particular view of the interpretation of the Scotland Act or of any act enacted by the Scottish Parliament on the basis that they had been democratically elected. The passage, I think, is at MS 1619.

  • Thank you. Paragraph?

  • Paragraph 71, my Lord, and he observed that the Scotland Act is not a constitution but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from some of the examples he had been given.

    "The Scotland Act can be amended more easily than a constitution, a factor which is relevant since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government's stated policy on legislation concerning devolved matters currently embodied in the memorandum of understanding [which I will come to in a moment] known colloquially as the Sewell Convention, may impose a political restriction upon Parliament's ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act."

    I think also an earlier reference at MS 1616 at paragraph 58 where he observed:

    "Insofar as this submission invited the court to adopt an approach to the interpretation of acts for the Scottish Parliament which is different from that applicable to other legislation and different from that authorised by section 101 of the Scotland Act, I am unable to accept it."

    He goes on about the point made with regard to the democratic legitimacy of the Scottish Parliament, but not as something which impacted upon the approach to the interpretation. So there is no particular or distinct tenet of interpretation to be employed simply because we are dealing with what in that context is a constitutionally important act.

    I recollect that Lord Hope said something similar in the Supreme Court case in Imperial Tobacco. I regret that the Supreme Court case has not been incorporated into the bundle, but your Lordships may well be familiar with at that case. Lord Hope made his observations at paragraph 16 of the report.

  • What is the case called?

  • Again, it is the Imperial Tobacco case, my Lord, against the Lord Advocate, as heard before the Supreme Court.

    I have a recollection of having lost the case, my Lords.

  • They tend to be the cases one forgets. It is paragraph 16, you say.

  • My Lord, Lord Reed also made some observations in the Agricultural Sector (Wales) Bill case, which is at tab 246 of volume A20, MS 6827, if I can invite your Lordships to bring that up.

  • Sorry, which bundle, again?

  • It is volume 20, my Lord, tab 246. This was the case of the competence of the Welsh Assembly in respect to certain legislation.

    At paragraph 6 which begins at MS 6829, his Lordship observed the description of the 2006 Act as an act of great constitutional significance:

    "It cannot be taken in itself to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute."

    He refers there to the case of Attorney General v National Assembly for Wales Commission in support of that proposition.

    So again, it is not that there is any particular or exceptional tenet of interpretation to be employed simply because we are addressing the matter of this particular form of legislation. Now, again, in the context of the Northern Ireland Act 1998, it has been asserted that the Northern Ireland Act is a constitutional statute, and that as a consequence of that, it enjoys some particular enhanced status.

    The authority usually cited in support of that proposition is, of course, the speech of Lord Bingham in the case of Robinson, and I think your Lordships will find that in core volume 4, tab 81, MS 3272, with Lord Bingham's observation at 3280.

    He didn't actually describe the 1998 Act as a constitutional statute, but he did describe the Act as in effect a constitution, and stated that it should, consistently with the language used, be interpreted generously and purposefully, bearing in mind the value which the constitutional provisions are intended to embody. I don't believe anyone would take exception to that in the context of all those acts which are regarded as of constitutional significance.

    It is also worthwhile noting the observations of Lord Hoffmann in that case at 3284, where he made the point that the 1998 Act was framed by the Belfast agreement, and that was of course an extremely important, and remains an extremely important political agreement, which also incorporated an element of international treaty in the form of the British-Irish agreement that was appended to the Belfast agreement, sometimes referred to as the Good Friday agreement.

    I would have no difficulty with that approach to the interpretation of any of the devolution legislation, but can I move on to the conduct of foreign relations and the context of that legislation. My Lords, the conduct of foreign relations is a matter expressly reserved in the devolution legislation, such that the devolved legislatures have no competence in that matter. The Scotland Act section 30(1) gives effect to schedule 5 which defines reserved matters. As a point of reference, that is at MS 4361.

    Those reserved matters include, amongst others, and I quote:

    "International relations, including relations with territories outside the United Kingdom, the European Union and their institutions and other international organisations."

    The Northern Ireland Act is in materially identical terms with the legislative competence of the assembly being restricted in terms of section 6, where there is a reference to what are termed "accepted matters".

  • Those accepted matters are expressed in almost identical terms to the Scotland Act, which is hardly surprising, given the passage of the legislation in the same year, and includes express reference to the European Union. In the same way, the Government of Wales Act 2006 makes provision to determine competence of the Welsh Assembly, and provides at section 108 for those matters which relate to one or more of the subjects listed under the headings in schedule 7 of the Act, and that includes conduct of foreign relations.

    So again, it is perfectly clear and express on the face of this legislation that the matter of foreign relations and foreign affairs, and in particular the matter of our relationship with the European Union, is not within the competence of the devolved legislatures. I will submit that these reservations are fatal to reliance on the devolution legislation as giving rise to any necessary implication, or indeed any other indication that the Government cannot exercise its foreign affairs and treaty prerogative in the ordinary way.

    Therefore, it respectfully appears to me that there is nothing in this legislation that could abrogate the exercise of the foreign affairs prerogative, and that the court is not assisted by lengthy (Inaudible) that attempts to bring the exercise of that prerogative or to qualify the exercise of that prerogative, by reference to the devolved legislation.

    Now, there are --

  • You mean the answer is the same in Scotland as it is here?

  • Essentially the same. And in Northern Ireland and in Wales.

    Now, various attempts are made in the interveners' cases to try and circumvent that issue. They point out that there are of course express references to EU law in the devolved legislation, and that is absolutely true, because of course that legislation assumed that the United Kingdom was a member of the EU, but of course that legislation does not require that the United Kingdom should be a member of the EU.

    Indeed, the Lord Advocate rightly put the matter in this way at paragraph 66 of his own case, where he said that the references to EU law and the devolution legislation, and I quote, "simply reflected the fact that by the time that the devolution statutes were enacted, EU law had become the law of the land in each of the United Kingdom's jurisdictions".

    So be it.

    It is of significance that EU law is defined in the devolved legislation in an equivalent ambulatory fashion to that set out in section 2, subsection 1 of the ECA. That is, section 126(9) of the Scotland Act 1998 adopts the following definition, at MS 4374 --

  • That is the significant point, isn't it? The fact that foreign affairs are reserved to the United Kingdom Government doesn't necessarily mean that it didn't, in the devolution legislation itself, commit itself to exercise or not to exercise the prerogative in a particular respect, and your argument is that it didn't, because essentially the references to the EU are ambulatory.

  • Precisely so.

    I accept, my Lord, that the devolved legislation can act as the ECA does, as a conduit, whereby rights and obligations that exist in EU law, or exist in EC law, can flow into Scots law, just as they flow into English law, and indeed flow out again, because one has to remember that the conduit created by section 2(1) flows in two directions; it not only brings in rights and obligations but it takes them out again according to what is done at the EU level, in exercise of the foreign affairs prerogative, to determine regulations and directives under EU law.

    I should just add, my Lord, that so far as Wales is concerned, the definition that I have just alluded to at section 126 of the Scotland Act appears essentially in the same form at section 158 of the Government of Wales Act, and materially equivalent wording is adopted by section 98 of the Northern Ireland Act, albeit for some reason the words "from time to time", which we know appear in section 2(1), do not appear in section 98; but I don't suppose anyone is going to argue that the intention was to freeze EU laws at 1998 for the purposes of Northern Ireland.

    My Lord, in these circumstances, it doesn't appear that the continued references to EU law in the devolved legislation really take the interested parties' case anywhere. They also attempt to make something of the fact that there is a restriction on the competence of the devolved legislatures to legislate contrary to EU law, and there are, of course, specific provisions for that in the Scotland Act, the Government of Wales Act and the Northern Ireland Act.

    I would just observe, my Lord, that even if they were not there, that prohibition would exist in any event because of the status of EU law. It would not be possible for the Scottish Parliament or the Scottish Government to proceed contrary to EU law. So those are there as a point of emphasis and in order to ensure that the exercise of these devolved powers does not conflict with the UK's legal obligations as set at the level of the EU.

    Certainly these restrictions say nothing about the exercise of the prerogative in foreign affairs. As I say, they are strictly unnecessary.

    In addition to the foregoing, each of the interveners appears to argue that withdrawal from the EU will somehow have an impact on domestic law, and they point to a range of EU secondary legislation that has effect in Scots law or in Wales or in the law of Northern Ireland, but again with respect, what we are dealing with is the impact of the United Kingdom's withdrawal from the EU. This secondary legislation may go at that time, but it may well go even if we don't withdraw. It is open to the United Kingdom Government in the exercise of the prerogative to agree to regulations that have direct effect, to agree to directives under EU law, which will have the effect of revoking existing domestic law rights and obligations which flow from or through the conduit of section 2(1), or the conduit of the devolved legislation.

    So again, there is simply nothing in this point.

    If I could turn for a moment to the Agnew case, the Agnew printed case presents three arguments in respect of the Northern Ireland Act, and these begin at paragraph 80 of their case. If I can just summarise them very briefly, the first seems to be that Article 50 notification would deprive Northern Ireland's citizens of rights granted by the Northern Ireland Act 1998. Strictly speaking, what it would deprive them of are rights that would flow into Northern Ireland by virtue of the conduit which allows for EU law rights to arise.

    The second argument advanced in Agnew is that Article 50 notification would alter the distribution of powers between the Northern Ireland assembly and the United Kingdom by eliminating the constitutive role that EU law currently plays in the definition of competences under the Northern Ireland Act.

    I have already touched upon that, my Lords, and it doesn't appear to me that that takes the case anywhere.

    Thirdly, it is argued that notification would frustrate the purpose and intention of the Act, as it would run contrary to the continued application of EU law in Northern Ireland, and more particularly would impact upon the operation of cross-border bodies.

    This is quite a complex area, and it is a point that was majored upon by those appearing for Agnew before Mr Justice Maguire. It is possible that one could deal with this at some considerable length, but in view of the time available, what I would say is this: that the line of argument is simply unfounded. The relevant implementation bodies that are referred to, one in particular which is relied upon is the special EU programme body, are not fixed and determined for all time coming by the Northern Ireland Act.

    What I would ask is that I might respond to any point that is made by my learned friends with regard to this issue in reply, but shortly put, first of all, they seek to rely upon the Belfast agreement --

  • Have you got some response in writing on this?

  • There is a response in the form of the case that Dr McGleenan has prepared, my Lord.

  • We will have, of course, the transcript of what you say today.

  • You were going to give the transcript reference. I am sorry to interrupt you.

  • It is not covered by Mr Justice Maguire's judgment, is it?

  • Mr Justice Maguire did make a summary point with regard to this, and can I just say, my Lords, it is a little surprising in my respectful submission that the divisional court was quite so dismissive of Mr Justice Maguire's analysis of the case in Agnew, which was carefully argued and carefully presented, and expressed very clearly in my respectful submission by Mr Justice Maguire, but that is perhaps another point.

  • You were going to give Lord Mance the reference. If you want to give it to us after the short adjournment --

  • Can I move on from the Agnew point, which I suspect will be developed by reference to the special --

  • One point, if I can interrupt, would be to annotate your submissions as recorded on the transcript by cross-referencing -- that may be the best way to do it, but let's leave that for the moment.

  • I do not have the passage from Mr Justice Maguire to hand, so I will do that, my Lord. On this part of the case, my Lord, there is the McCord reference which essentially is in these terms: does the giving of notice pursuant to Article 50 of TEU impede the operation of section 1 of the Northern Ireland Act 1998?

    Here it appears to be argued on behalf of McCord that the sovereignty of the Westminster Parliament is now attenuated in some way by the devolution Acts and indeed by the Belfast agreement, which is a critically important political agreement, and has to be seen in that context. But it respectfully appears to me that this submission pays no regard to the fact that constitutional balance between affording the devolved institution scope to legislate on transferred matters while retaining sovereignty over reserved matters is a constant theme of all the devolution legislation.

  • It comes back to the point you opened with, effectively.

  • Exactly so, my Lord, and again, I don't want to develop that too far, but what McCord attempts to suggest is that section 1 of the Northern Ireland Act is directed to maintaining Northern Ireland within the EU, when in fact, of course, it is concerned with a more binary decision, which is whether Northern Ireland should cease to be part of the United Kingdom and form part of united Ireland. There is not scope for introducing into that binary question the question of its status within the EU.

    So the case simply doesn't get off the ground in that context, and in that regard I would notice that Mr Justice Maguire addressed this point at paragraph 152 of his judgment. That is in volume 1 of the Northern Ireland material, tab 14, MS 20372, where he observed:

    "The court is unaware of any specific provision in the Good Friday agreement ... 1998 Act which confirms the existence of the limitation which the applicant contends for and which establishes a norm that any change to the constitutional arrangements for the Government of Northern Ireland and in particular withdrawal by United Kingdom from the EU can only be effected with the consent of the people of Northern Ireland. While it is correct that section 1 of the 1998 Act does deal with the question of the constitutional status of Northern Ireland, it is of no benefit to the applicant in respect of the question now under consideration, as it is clear that under this section, and the relevant portion of the Good Friday agreement, being the Belfast agreement, is considering the issue only in the particular context of whether Northern Ireland should remain as part of the United Kingdom or united Ireland."

    I would respectfully observe that that correctly states the relevant position.

    So in summary, my Lord, the devolved legislation actually takes the court nowhere in the determination of the issue which it has to decide in the present case.

    There is no means by which you can suggest that the exercise of the foreign affairs prerogative, which is what we are actually here to address, is in any way impinged or qualified by the devolution legislation.

    Can I move on, from the legislation as such, to the operation of the Sewell convention. This is perhaps where the Lord Advocate seeks to make as much as of a case as he can, with regard to the idea that somehow the constitutional requirements of Article 50 are qualified by the consequences of the devolved legislation. The convention, as your Lordships will be aware, takes its name from the statement of Lord Sewell when he was minister of state in the Scotland office during the second reading of the Scotland bill in 1998. The relevant quotation can be found in volume A29, tab 388 --

  • This is set out in your case?

  • It is, my Lord, page 18 and MS 10127, and shortly stated:

    "As happened in Northern Ireland earlier in the century [he is referring to the period between 1920 and 1972, of course] we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament."

  • Can you just give me a MS reference to your case.

  • I think you asked about your case reference.

  • It is at page 18, and I do not have a MS number on the copy of my case, I regret, my Lord.

    Now, although Lord Sewell was speaking in the particular context of the establishment of the Scottish Parliament, an equivalent convention applies in relation to the Welsh and Northern Irish assemblies and in that context, it is appropriate to look at a memorandum of understanding which was entered into by the respective governments in 2013. Your Lordships will find that memorandum of understanding at A28, tab 346, beginning at MS 9560. It may be appropriate just to look briefly at the memorandum of understanding because it is referred to in the --

  • And MS 9560.

    I apologise if I am going through this at something of a rate of knots.

  • I understand your position.

  • I hope, of course, your Lordships might be able to go back to the transcript and make some headway with what I am trying to say.

  • We are making a lot of headway and we will make even more headway when we see the transcript, thank you.

  • If we look, my Lords, at the memorandum of understanding, and just go to paragraph 2 at 9563, paragraph 2:

    "This memorandum is a statement of political intent and should not be interpreted as a binding agreement. It does not create legal obligations between the parties. Nothing in this memorandum should be construed as conflicting with the Belfast agreement."

  • Then at MS 9567, paragraphs 14 to 15:

    "The United Kingdom Parliament retains authority to legislate on any issue ... whether devolved or not ... it is ultimately for Parliament to decide what use to make of that power."

  • "However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except the agreement of the devolved legislature."

    My Lords will notice with regard to devolved matters, that is the first question that would arise, is any piece of legislation with regard to devolved matters, but we don't know until we see it.

    Secondly, even if it is with regard to devolved matters, what is Parliament expressing? It is expressing what amounts to a self-denying ordinance, albeit a qualified one. If it is with regard to a devolved issue, and we are not there, but if we go past that, then normally we will not legislate in respect of that. But it is our self-denying ordinance, and indeed, that was brought out by an observation that in fact I have already touched upon by my Lord, Lord Reed in the case of Imperial Tobacco v Lord Advocate, which is at volume A5, tab 41, MS 1592, but particularly paragraph 71 at MS 1619.

  • Yes, we looked at this earlier.

  • We touched upon this earlier but just to go back for a moment.

  • That is the reference to the Sewell convention.

  • And making it clear, my Lord, in my respectful submission that this is a political --

  • Which paragraph are you referring to?

  • I did write that some years before the 2016 Act had been passed, and no doubt the issue you will have to come on to address is whether that makes a difference.

  • I would just observe, my Lord, that it doesn't, but I will come on just to make that point. Clearly, what my Lord says in my submission remains true, that this is a political restriction upon Parliament's ability to act, no more and no less than that.

    In our case, we also make reference to the Rhodesian case, the southern Rhodesian case of Madzimbamuto. I am not going to take your Lordships to it, you have it in the case, but in my submission essentially Lord Reed in that case was making the same point that: here you have a convention but it is just that, it is no more than that; it is not some qualification or inhibition upon parliamentary sovereignty.

    The Lord Advocate does seek to make the case that somehow a convention can transmogrify into a legal requirement, and he makes reference, amongst other things, to the Crossman Diaries case, the Jonathan Cape case. It is at CA4, volume CA4, tab 245. I am not going to go to it, but I simply draw your Lordship's attention to a commentary, a very helpful commentary on that case, from Professor Bradley in one of his works, and that can be found at volume A31, tab 416, MS 10531, where he puts the Jonathan Cape case in its proper context. It is a context that clearly conflicts with the approach adopted by the Lord Advocate.

    There is reference, particularly in the McCord case, to a great deal of Canadian material which is not of any great assistance, but again, I would just mention in passing a decision of the Supreme Court of Canada in the Manitoba reference case in this context. It is at volume A25, tab 305, MS 8783, and it is a passage that I am not going to quote, from MS 8795 to MS 8799. Essentially, the majority judgment of the Supreme Court in Canada is that there is no authority for the proposition then being advanced that a convention can crystallise into law.

    That chimes very readily with the Dysian observation that conventions are not in reality laws at all, since they are not enforced by the courts.

    So, my Lords, the Sewell convention is a political convention concerning the legislative functions of the Westminster Parliament. It is, as I say, essentially a self-denying ordinance on the part of Parliament. It was never intended to be a justiciable legal principle, and as my Lord, Lord Reed has already correctly observed, it is a political restriction on Parliament's ability to legislate in respect of devolved matters.

    The correct legal position is that Parliament is sovereign, and may legislate at any time on any matter, and that is specifically set out in the devolved legislation itself, section 28(7) of the Scotland Act, section 5(6) of the Northern Ireland Act, section 107(5) of the Government of Wales Act.

    In my respectful submission the Lord Advocate is plainly wrong as a matter of constitutional law to assert, as he does, at paragraph 30 of his printed case that I took your Lordships to at the outset, that the freedom of the United Kingdom Parliament is constrained by the constitutional conventions which apply when Parliament legislates with regard to devolved matters.

    That, in my respectful submission, is clearly not the case.

    Now, to take up my Lord, Lord Reed's point, nothing in that analysis is affected by the amendment of section 28 of the Scotland Act by section 2 of the Scotland Act 2016. Section 2 of the Scotland Act 2016 has the headnote, "Sewell convention". It was not taking the matter any further than the expression of the convention that we have already seen. That is now section 28(8) of the Scotland Act 1998, which says that -- so again I pause to observe:

    "It is recognised that the Parliament of the United Kingdom will not normally [again, I emphasise "normally"] legislate with regard to devolved matters without the consent of the Scottish Parliament."

  • But it cannot be described as a purely political force once it is enacted in a statute.

  • It is a statutory expression of that political convention, my Lord, which is what it was intended to be in light of the Smith agreement that was entered into and -- from the foundation and reason for the amendments to the Scotland Act 1998.

  • Do you submit that its incorporation in an act of Parliament makes no legal difference to its effect?

  • I do, my Lord, yes, and it was made perfectly clear during the passage of the Scotland Act 2016 that the intention was simply to incorporate in statutory form the existing convention and no more than that, and indeed there were attempts both by the -- in the House of Commons and in the House of Lords to amend the proposed clause 2 in order to extend it to incorporate aspects of the practical operation of the convention, and those amendments did not proceed.

  • Surely if it is a convention, it must be questionable -- if it is a parliamentary convention, it may be questionable whether the courts can rule on it. Once it is statutory, then it is plain that we can.

  • You can look at its interpretation --

  • I have no difficulty with that; it is a question of where that takes one.

  • It depends what is meant by normally.

  • What is meant by "recognised as" or what is meant "by regard to", but ultimately it will be for Parliament to decide whether or not it adheres to the convention as interpreted by the court.

  • It strikes me as part of the problem about regarding it as imposing a justiciable obligation is the fact that the obligee would be Parliament. It doesn't impose an obligation on the Government.

  • It doesn't impose an obligation on Parliament, strictly speaking.

  • But the institution which it is said will not normally legislate, et cetera is Parliament.

  • Indeed. Indeed.

    Just to take up my Lord Reed's point, it does not appear to me there is any practical change as a result of section 28(8) emerging into the Scotland Act 1998.

  • I think the point being made is that if the issue before us is whether it has to go to Parliament or not, the Sewell convention is concerned with what Parliament will or will not do, and therefore if it does not go to Parliament, we don't get to the Sewell convention anyway.

  • Article 9 of the Bill of Rights might be a bit of an impediment to our -- I think that is the point that my Lord was making.

  • I began with that point that in the context of this appeal, this case, we don't even get close to addressing the Sewell convention, and indeed the legal irrelevance of the Sewell convention is actually expressly accepted by the Counsel General for Wales in his printed case at paragraph 70.

    He makes clear that he is not arguing that the Welsh Assembly has a legally enforceable right to veto any Westminster legislation authorising Article 50 to be triggered, although he then argues that the use of the prerogative to trigger Article 50 will circumvent the application of the convention, a point that I will come back to in a moment.

    The Lord Advocate in his intervention does, however, maintain that a legislative consent motion of the Scottish Parliament is, as he puts it, a constitutional requirement within Article 50 alongside an act of the Westminster Parliament before a valid decision in the United Kingdom could be made with regard to withdrawal from the EU.

    Now, I would just observe this, my Lord. A great deal is made by the Lord Advocate in his case of the legislative consent procedure. The idea of the legislative consent motion. But the Sewell convention in fact says nothing about LCMs; it says nothing about the practice by which consent, if required or sought, should be given with regard to legislation that relates to a devolved matter.

    So although LCMs are the currently preferred procedure, that is a matter entirely for the internal standing orders of the devolved legislatures. The seeking of an LCM is commenced and controlled entirely by the devolved legislatures, not by Parliament. If the devolved legislatures wish to indicate their consent in some other form, then they are perfectly free to go and do that.

    Conversely, there have been instances where, for example, the Welsh Assembly has put up a legislative consent memorandum and then refused to pass a motion in circumstances where the UK Parliament did not consider that it was legislating with regard to a devolved matter, but the Welsh Assembly wished to make a political statement that they felt that they were, and that happened, I believe, with regard to the Agricultural Workers bill at an earlier stage.

    Again, I emphasise a point that has already been made, the issue of the Sewell convention and of legislative consent motion simply does not arise in this appeal. This case does not concern the passage of legislation and that, in my respectful submission, is a complete answer to the rather surprising proposition made by the Lord Advocate that there is an issue properly in dispute between the parties with regard to that matter. That is a point he seeks to make at paragraph 84 of his case.

    At the end of the day, the Sewell convention is wholly irrelevant to this appeal and indeed to the conduct of foreign affairs. I would just note that in his written case, the Lord Advocate provides an annex setting out where legislative consent motions have been sought or have been passed with regard to devolved legislation, and it is perhaps notable that what is absent from the annex is the European Communities (Amendment) Act 2002, the European Parliamentary Elections Act 2002, the European Union (Amendment) Act 2008, the European Union Act 2011 or indeed the European Union Referendum Act 2015.

    So it would be somewhat surprising if those had been overlooked, if they do have the relevance in the context of a constitutional convention that the Lord Advocate now seeks to argue.

    The conclusion of the Article 50 case advanced by the Lord Advocate is that there is by virtue of the Sewell convention a constitutional requirement, using the terms of Article 50, that must apply before the United Kingdom -- and takes steps in terms of Article 50 to leave the EU.

    However, the Lord Advocate makes no effort in his case to explain how a convention which provides in terms that it does not apply as a rule in all circumstances, could even be a requirement, let alone a constitutional requirement and therefore there is doubt as to where that case actually goes.

    In my respectful submission, there is no substance in the case that is being advanced there by the Lord Advocate.

    I mentioned a moment ago the Counsel General for Wales' argument that the exercise of the prerogative would be an avoidance of the Sewell convention or would, as he puts it, short-circuit the Sewell convention and in my respectful submission that simply cannot be right. The convention could not apply to legislation authorising the issue of the Article 50 notification, because it is a reserved and not a devolved matter, so nothing in general is being avoided.

    The convention cannot be enforced in law in circumstances in which it might appear to fall within the purview, where there is a bill of the Westminster Parliament which might affect devolved competences. So it cannot possibly apply in regard to the invocation of the prerogative.

    It just does not follow.

    In any event, if there was a dispute on that, it would not be justiciable.

    In summing up on the question of the Sewell convention my Lords, what I would say is this: it is not necessary and certainly not appropriate to consider the functions of the Sewell convention in the context of this appeal. No basis for that has been made out.

    My Lords, I was going to move on to certain particular points that arise in the context of Northern Ireland and the consideration of the Northern Ireland Act against the background of the Belfast agreement, because as Lord Hoffmann observed in the Robinson case, the Belfast agreement essentially frames the (Inaudible) constitutional statute. In view of the time available, I will just make one short observation.

    The Belfast agreement, which can be found in the Northern Ireland materials at volume 1, tab 14 at MS 20372 provides at paragraph 7 for parties to address any difficulties that would arise in the context of the agreement being implemented. If I could just turn to that.

    All it indicates, and I invite your Lordships to consider it, is the inherently flexible nature of the Belfast agreement to deal with events that had not been anticipated at the time the agreement was entered into. The Belfast agreement is not a legally enforceable agreement in one sense, but it is a critically important political agreement which does have appended to it an international treaty in the form of a British-Irish agreement.

    We entirely concur with Lord Hoffmann's observations, that it (Inaudible) the Northern Ireland Act, but there is nothing in the Belfast agreement that fixes in all time coming something such as the joint implementation bodies which are referred to in the Agnew case, for example, and that should be borne in mind.

    The second distinct question that arises in the Agnew reference concerns section 75 of the Northern Ireland Act 1998, which is the equalities provision. It is the equivalent of section 149 of our own equalities Act, and I am content there to adopt the analysis of that case, which is set forth at pages 50 to 63 of the written case that has been provided to me by Dr McGleenan and sets out why that is not relevant to the determination of the present issue.

    My Lords, that, rather swiftly and briefly, is all that I would have to say at this time with regard to devolved legislation in the context of the present appeal.

    Could I just make one further observation. My Lord Mance referred to the Referendum Act 2015 as leaving us in the air. In my respectful submission, it does no such thing. One has to consider the foreign affairs prerogative today in light, not just of the 1972 Act but also in light of the 2015 Act. Both are of constitutional significance.

    Now, it is argued against us that as a consequence of the 1972 Act and in particular section 2, the executive was restrained in the exercise of the foreign affairs prerogative. It certainly didn't disappear, it was used constantly for the next 43 years in order to bring EU law into our domestic domain, but one has to look at the foreign affairs prerogative in the context not only of the 1972 Act but the 2015 Act.

    What was Parliament doing? Parliament was aware of Article 50. Parliament was aware of the foreign affairs prerogative. Parliament passed the Referendum Act for the purpose of letting the people decide whether or not we would leave the EU, and as my Lord Clarke observed, Parliament was silent as to whether and when Article 50 would be triggered by the giving of notice. It was silent on the matter.

    It knew that it was open to the executive to exercise the foreign affairs prerogative, particularly after the 2015 Act. If Parliament wished to intervene to prevent the executive exercising that prerogative, it would do so. It is a matter for Parliament. Parliament has remained silent and in my respectful submission, and with all due respect to the court, it is not for the court to fill in that which Parliament declined to. Parliament could decide tomorrow to prohibit the executive from exercising the foreign affairs prerogative in order to give notice under Article 50.

  • The argument the other way would be if on this hypothesis, which I think is the case, we accept that the 1972 Act imposed some sort of clamp, then your argument could be turned against you by saying that if Parliament had wished to remove the clamp in the 2015 Act, they could have said so and they didn't.

  • With respect, my Lord, any clamp is only with regard to whether in the context of a statutory provision to enter, to accede to the EU, there should be implied some limitation on the foreign affairs prerogative to leave, but of course once we get to the Referendum Act of 2015, its purpose was to determine the question of whether or not we should leave.

  • You cannot then infer that the clamp would remain and as I say, if Parliament wanted to determine that that prerogative should not be exercised, Parliament could decide that tomorrow, it could have decided that yesterday, and as my Lord Clarke observed, Parliament decided to remain silent on that, and in my submission for a very particular purpose and for a very particular reason.

    Unless there is anything I can assist with --

  • Since you have chosen to go down this road, could I ask you a follow-up question. It occurs to me that if there is a clamp, one way of envisaging it is in terms of legal powers. Either the prerogative remains or it does not in relation to withdrawal from the EU treaties.

    Another way of looking at it might be looking at it in the same sort of way that it was discussed in Laker as being to do with whether the power is being properly exercised or abusively exercised, in which event one might say that if Parliament passes the act and a week later, for no apparent reason, the Government decides to withdraw, and then that is an abuse of a power; if on the other hand the Wilson Government holds a referendum as it does, and if it had gone the way that this one has gone, it then decides to withdraw, then there is a rational and a basis with support in a principle of -- a constitutional principle of democracy for exercising power, and you see the point I am making --

  • The clamp is not necessarily an on/off switch. It could be to do with ideas about abuse of power.

  • This is why analogies can be so dangerous, because we try and analyse what has happened. We know the foreign affairs prerogative survives the 1972 Act. It has been exercised constantly for 43 years with regard to EU law, so the term clamp is perhaps an exaggeration, and it might be more appropriate to say, as my Lord indicates, that post the 1972 Act, it might be seen as an abuse of that foreign affairs prerogative to exercise it in order to take us out of the EU; but clearly there could be no such abuse after the Referendum Act 2015 and the result of the referendum was known.

    So it is not a case of the foreign affairs prerogative being limited or cut down or clamped. It is simply a question of whether it would be proper and appropriate for the executive to exercise the prerogative in particular circumstances, and the circumstances that we have to address are those which exist today in light of the 2015 Act, which is of considerable constitutional importance and the decision made in the referendum, knowing that if Parliament wanted to intervene and limit the exercise of that prerogative right, it is free to do so and has chosen to remain silent.

  • Is that a convenient moment then? I think you have --

  • I think that is the terminus for me.

  • Okay, and as you say, subject to time and sorting it out with Mr Eadie and the Attorney General, you will have some possibly more specific points to make in answer to the submissions that are made on the devolution issues.

  • I am sure my Lord Kerr knows that the question of cross-border bodies is one of some complexity, and I have simply given a garbled summary, but if I am required to come back on that, I will speak to my learned friend Mr Eadie about time

    for that.

  • Thank you very much. I think some

    rearranging of the personnel is to be done over the

    adjournment. I hope everyone will have enough time to

    have lunch, but we will resume again at 2.00 and I think

    we are due to hear from the Attorney General for

    Northern Ireland.

    Thank you very much. We will adjourn until 2.00.

  • (The Luncheon Adjournment)

  • Mr Attorney.