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

  • My Lady, my Lords, I appear on behalf of the appellant Raymond McCord, with Mr Fegan, and our position is one which goes further than my friend, and in fact in some respects is contrary to it, because we say that as a matter of the constitution of the United Kingdom, that it would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland and we say that for two reasons.

    First of all, being part of the EU is part of the constitutional settlement which in some respects overlaps with the arguments made by my learned friend. But we say, secondly, that there has been a transfer of sovereignty by virtue of the Good Friday agreement, the Downing Street declaration and section 1 of the Northern Ireland Act, so that in fact the people of Northern Ireland now have sovereignty over any kind of constitutional change, rather than Parliament.

    The notion that Parliament is supreme, that it has primacy is now gone. There have been various dicta from your Lordships, including Lord Mance in Axa, about a law which might discriminate against red-headed people, and of course the dicta from Lord Steyn and Hoffmann in Jackson, that the Lords would have to intervene if Parliament were to act in a way which the court might regard to be unlawful or unconstitutional.

    What is supreme, my Lords and my Lady, is the rule of law, in my respectful submission, and in interpreting what the rule of law is, it is useful to take a look at some of the Canadian cases, which, although there is a written constitution in Canada, which the UK of course does not have, looked at areas where the constitution did not apply.

    Some extracts from the cases are set out in our printed case and for time reasons, I wonder could I refer your Lordships and my Lady to that; it is core volume 1 of the McCord case, it is a very small binder.

  • And the Quebec secession case. First of all, my Lords, my Lady, one of the principles which is extracted by the Canadian cases is that the consent of the governed is a value that is basic to our understanding of a free and democratic society, and indeed that has been historically part of the problem in Northern Ireland, and it was to obtain that very consent of the governed that the Good Friday agreement was arrived at, so that institutions, political institutions and the ultimate question of which country Northern Ireland should be a part of, whether it is part of the United Kingdom or a united Ireland, was determined and looked at.

    That is the Supreme Court Quebec secession reference, paragraph 77 of our printed case, but paragraph 74, it looks at this question of -- this is distinct before we even look at the Good Friday agreement, my Lords, my Lady, that when one is looking at a federal system, which Canada is, and arguably England, Scotland and Wales may be, that the notion that a majority in one region may simply trump a majority in another is not a fair reflection of what a modern democratic society should do.

    Paragraph 74, the Canadian courts looked at this question in the case of the Quebec secession reference -- sorry, my Lords, my Lady, paragraph 73, first of all, they say that in looking at the underlying principles of what a constitution should look like, that it should be animated by the whole of the constitution, including the principles of federalism, democracy and constitutionalism.

    At paragraph 74, then, another extract from the same case is set out, and it looks at the -- a negotiation process which they say should take place if there is a conflict between majorities in a federal system. And that negotiation process, precipitated by a decision of a clear majority of the population of Quebec, on a clear question to pursue secession, would require the reconciliation of various rights and obligations by the representatives of the two legitimate majorities, namely the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be.

    There can be no suggestion that either of these majorities trumps the other political majority, that does not act in accordance with the underlying constitutional principles we have identified, puts at risk the legitimacy of the exercise of these rights.

    What we say, my Lady, my Lords, is that that is in the context of a federal system. But what section 1 of the Northern Ireland Act does is it puts Northern Ireland's place within the United Kingdom on a voluntary basis. It is more in the nature of confederalism than federalism. To equate the devolution structure of Northern Ireland with the other devolution arrangements for Scotland and Wales does no justice to history, and does no justice to the right of the people of Ireland to self-determination, as set out in the Anglo-Irish agreement, the Good Friday agreement, and does no justice to the principle of consent which is enshrined in section 1 of the Northern Ireland Act. Section 1 of the Northern Ireland Act enshrines, we say, is a statutory expression of both of these principles. When you look at it, which it is in Northern Ireland volume 1, one can see -- my Lords, Northern Ireland authorities, volume 1, tab 3.

  • I am very grateful, my Lord.

  • Is this the status of Northern Ireland, 20044.

  • Section 1 -- we say first of all, what the court should take from section 1 is it is declaratory and says:

    "It is hereby declared Northern Ireland in its entirety remains a part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland."

    So there is a transfer there of power, of sovereignty, over the ultimate question, from Parliament, we say, to the people of Northern Ireland. We say it is not simply the ultimate question, which has been transferred, but it is all rights of self-determination up until that point.

    That is the unique distinguishing feature of Northern Ireland -- well, perhaps there are two distinguishing features. I will look at section 2 in a moment. But first of all, the voluntary basis upon which the people of Northern Ireland remain part of the United Kingdom, and secondly, that we share power and share sovereignty in respect of the all-Ireland implementation bodies. That is unique to Northern Ireland and does not exist anywhere else.

    Subsection (2) says:

    "But if the wish expressed by a majority in such a poll is that Northern Ireland should be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed."

    Again, my Lords, my Lady, we say that is an expression of the voluntary basis that the people of Northern Ireland remain part of the United Kingdom.

  • Insofar as you are saying that section 1 confers on the people of Northern Ireland the say in respect of legislation, and we certainly see that it confers a power in respect of the decision to remain part of the UK or to join a united Ireland, what are the areas of legislation which the people of Northern Ireland under this have? Where does it all end?

  • We say, my Lord, that every other section of the Northern Ireland Act, and if one looks at legislative consent motions, they simply divvy up legislative consequences between Westminster and the Northern Ireland assembly and have no real impact upon the point which we are making, which is that the ultimate right, the ultimate sovereignty has transferred by virtue of section 1. One doesn't need to look at, as I say, simply this divvying up of legislative competencies. I am not sure if I answered my Lord's question.

  • I was simply going to say subsection (2), I suppose, could be said to be another example of a statutory provision which actually says what happens as a result of a referendum or, in this case, a poll.

  • The context of that, we say, is important, my Lord, and to the extent that the United Kingdom has no written constitution, we say that the Good Friday agreement now forms a written part of the constitution of Northern Ireland, and unlike my friend, we say that it is binding, parts of it, not all of it but certainly that section of it that deals with constitutional issues is binding, it is a binding arrangement. As a matter of constitutional law, in that it may derive its legitimacy from the rule of law and what has been agreed between the parties, between Britain and Ireland and between Britain and Northern Ireland, it derives legitimacy from that. But it also derives legitimacy as an international agreement, a binding international agreement which has been incorporated into UK domestic law by virtue of section 1.

    My Lords, if I can just turn very briefly to that agreement, it appears at volume 1, tab 14, 20342 and the constitutional issues which are set out, they are, it must be said, set out initially in what is -- what may be described as binary terms, but what I would say to the court is there is very little about Northern Ireland that can be described in a binary basis.

    Take the applicant, my client, for instance, he is a Protestant from north Belfast, he is a victim of the Troubles, he is a victims' rights campaigner. He is here, has always attended court with his friend who a Catholic. But his son was murdered by loyalist paramilitaries. He regards himself as British, although many people in Britain may regard him as Irish. It is a complex situation, my Lords, my Lady, northern Ireland, and there is a complex constitutional settlement.

    It would be very disturbing for the people of Northern Ireland to imagine that the terms so agreed in the Good Friday agreement were not binding to some extent, did not have a constitutional status.

    Lord Hoffmann in Robinson at paragraph 13, page 3286, refers to the fact that the agreement should be looked at in terms of interpretation of section 1, but in Robinson itself, my Lords, my Lady, the court made a strained interpretation of section 16 of the Act in order to give effect to the agreement and the purpose of the agreement -- in a purposive general way. That is a sort of device employed by courts that have a written constitution. It is a device employed by courts here in this jurisdiction in terms of looking at the European Convention on Human Rights, and we say that is the basis upon which the Good Friday agreement should be looked at.

    If I could bring your Lordships very quickly to subparagraph (1), sorry, my Lords, it is 20374, where the constitutional issues, and there are simply five of those set out and, to the extent that it has been argued by the Government and in fact by Mr Justice Maguire that there was no provision within the Good Friday agreement which sets out our contentious, if I could direct your Lordships towards subsection (3) and the very last subclause of that, it is after the semi-colon. To put that into context, that is part of the constitutional issues which enshrines the principle of consent.

  • Reference to changing the status?

  • Yes:

    "... that it would be wrong it make any change in the status of Northern Ireland save with the consent of the majority of its people."

    It is there beside the principle of consent because we say, my Lord, the history of the agreement, when one looks at it, and it is in the following page, it replaces the Anglo-Irish agreement, the 1985 agreement, which was imposed upon the people of Northern Ireland, it was a joint arrangement between the Republic of Ireland and Britain, imposed upon the people of Northern Ireland, much to unionist disconnect.

  • One has to read what is said at the end of paragraph 3 in the context of what is said before.

  • One does. It is said in binary terms but it is an addition to the principle of consent and why it is given separate status. My submission is that it is to avoid a scenario like joint sovereignty, like the Anglo-Irish agreement, ever happening again, for the will of the people of Northern Ireland in constitutional issues to be overridden by Parliament against their wishes.

    Can I say one final point, my Lords, my Lady, that it would be unthinkable that section 1 of the Northern Ireland Act could be repealed and I would refer to the remarks made by Lord Denning in the Blackburn case where he referred to whether one could repeal the acts which give power back to the dominions, and he said it would be unthinkable for such matters to be repealed but he said if that ever did happen in terms of the European arrangements, then the court would look at it but the phrase he used, "What has been given away cannot be taken back", and we say section 1 is a statutory expression of that, my Lords, my Lady, and in those terms the triggering of Article 50 would impede that expression of self determination and the principle of consent.

  • Thank you very much indeed, Mr Lavery. Thank you very much.

    Lord Advocate.