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

  • I am very grateful, my Lord.

    My Lady, my Lords, I appear with professors McCrudden and Antony for the applicants in the Agnew case, and my learned friend Mr Lavery appears in a separate case, the McCord case. The court has given us a speaking allocation of 45 minutes for the Northern Ireland claimants as a whole.

    Subject to the court, my Lords, my Lady, Mr Lavery and I have agreed that 30 minutes of that allocation will be given to the Agnew case and 15 minutes for the McCord case.

  • If you have agreed that, that is fine with us, thank you.

  • My Lords, my Lady, probably the only authorities volume that I will be taking the court to is the Northern Ireland authorities volume 1, if that is of assistance.

    My Lords, my Lady, the applicants in the Agnew case, as you will have seen, are a cross party and a cross community grouping of politicians, individuals and human rights organisations who are concerned about how withdrawal from the EU will uniquely affect Northern Ireland -- and further concerned, as the lead claimant is in the other case, to ensure that the process of dealing with the referendum result is both lawful and properly considered.

    As the court will have seen, there were four issues dealt with by Mr Justice Maguire in the court below, which its common case are broadly reflected in the questions referred for this court. In the time available, I intend to focus my hopefully economical submissions on issues one and two, and within those contexts to avoid duplication of the submissions already made or to be made by parties or interveners in the Miller appeal.

    If time permits I want to say something very briefly about issue three and to make three short points in response to the Government's case on issue four.

    My Lords, my Lady, issue one is whether an act of Parliament is required before notice can validly be given to the European Council under Article 50 TEU in light of the provisions of the Northern Ireland Act 1998. In summary we say that the Northern Ireland Act, like the European Communities Act, is not neutral as to whether the UK is a member of the EU, or whether the treaties continue to apply in Northern Ireland. There are three strands to the argument we advance on that issue.

    My learned friend the Advocate General was right to identify paragraph 80 of our printed case as containing a summary of those strands, and that is to be found at MS 23716.

  • MS 23716, my Lord. The three strands are these: first, that the removal of rights granted by the Northern Ireland Act cannot be achieved by the exercise of the prerogative alone.

    Second, that significant alteration of the devolution settlement in Northern Ireland also cannot be achieved by the exercise of the prerogative alone.

    Third, that the giving of an Article 50 notice with frustrate the purpose and intention of the Northern Ireland Act in the context particularly of the north/south cooperation established under the Belfast and British-Irish agreements.

    I want to make extremely brief submissions about the first and second of those two strands, since they are addressed by other parties who are before the court and I want to develop the third strand in just a little more detail.

  • My learned friend the Advocate General said that the third submission was a complex area. If it seems that way, then I am sure that is a fault on my part, but I hope to persuade the court that it is really not that complex at all.

    My Lords, my Lady, the first strand, the removal of rights, the Northern Ireland Act confers rights under EU law on Northern Ireland citizens. It does so by providing that the legislative and executive branches of a Northern Ireland administration have no competence and no power respectively to act in a way which is contrary to EU law. That is sections 6(2)(d) and 24(1)(b) and your Lordships find those at MS 20048 and MS 20068.

    Those rights can be and have regularly been relied upon by individuals against the Northern Ireland administration in the courts in Northern Ireland to challenge legislation or executive action. Perhaps a recent example is JR 65's application in which the court, this court, refused leave to appeal on Monday of this week, to my client, unfortunately.

    But, my Lords, those rights can be relied upon in the courts, and the Government accepts that in this way the Northern Ireland Act is, in their language, "a further conduit" for the operation of EU law rights within the UK. Those provisions represent the UK Parliament embedding the new legal order of the EU into the constitution of Northern Ireland as well as the constitution of the UK.

    Importantly, my Lords, my Lady, the Government also candidly accepts that each of those provisions will become otiose or will beat the air, when the EU treaties no longer apply. We see that, my Lords, my Lady, in the Government's case in Agnew and the court proceedings at paragraph 57, and that is at MS 25161.

  • We submit that those rights cannot lawfully be defeated, frustrated or stripped of all content by the exercise of the royal prerogative.

    Now, the court will immediately see that that argument is a variation on the central case which is advanced by Lord Pannick for Ms Miller. I gratefully adopt his submissions on that issue and don't for a moment pretend that I could improve upon them, but the court has a brief written summary of our response to the Government's case in Miller, in our printed case at paragraphs 92 to 104. We simply add the concise point that the essential purpose of the dualist theory is to protect the position of Parliament as against the executive, rather than, as the Government seeks to have it, to protect the position of the executive against Parliament.

    My Lords, my Lady, issue one, the second strand, the alteration of the devolution settlement. This strand of our case is that the removal of EU law obligations as they apply in the EU, or as they apply in the UK rather, significantly alters the competence of the devolved administration in Northern Ireland. In other words, it materially alters the carefully constructed devolution settlement, and it does so, we submit, in at least two ways.

    Firstly, as we have seen, since the legislative and executive competence of the devolved authorities of Northern Ireland is limited by the operation of EU law, that is section 6 and section 24 read with section 98(1), the removal of EU law obligations necessarily increases that competence. The administration will be able to do things which up to now it has been precluded from doing by EU law restrictions.

    But, secondly, since observing and implementing obligations under EU law is a transferred matter -- that is in a provision we will look at in due course -- the hollowing out of EU law obligations also necessarily removes some areas of devolved responsibility. So the administration will not be able to do some things which up to now have been its responsibility.

    In our submission, such an alteration of the devolution settlement in Northern Ireland cannot be affected by the executive alone acting by means of the royal prerogative. To do so offends the legal principle that the law cannot be altered by means of the prerogative alone; much less, we say, can a constitutional statute or indeed a constitution as the Northern Ireland Act is. That would require clear words, even in a later statute, for it to be impliedly repealed or become otiose.

    My Lords, my Lady, a distinct but related point in this strand is that the use of the prerogative in this way also circumvents or sidesteps the usual requirements for an amendment of the devolution scheme. That usually requires either an act of the Westminster Parliament or an order in council under section 4 of the Northern Ireland Act, converting a reserved matter into a transferred matter, or vice versa, and the court will find section 4 at MS 20044.

    When one looks at section 4, one sees that any such order in council requires not only approval by each House of Parliament, but also a resolution passed in the Northern Ireland assembly itself, praying in favour of the change, and, given the sensitivity that there is with tinkering with the devolution settlement in Northern Ireland, that resolution also requires to be passed with defined cross-community consent. That is section 4(2)(a) and 4(3).

    We submit that the use of the prerogative permitting the executive to effect such a change without those protections frustrates the purpose and effect of those provisions.

    My Lords, my Lady, that strand of our case on issue one has been taken up by both the Lord Advocate on behalf of the Scottish Government and the Counsel General on behalf of the Welsh Government in their submissions to the court, and assuming their submissions orally are consistent with their written cases, we respectively adopt those submissions also.

  • That is very helpful, thank you.

  • But in our submission, my Lords, my Lady, the UK Government's contentions on the extent of its prerogative power are, with respect, cavalier, perhaps in this context with both a small C and a large C; in respect, my Lords, my Lady, of the effect which the cessation of the EU treaties will have on the delicately balanced constitutional settlement in Northern Ireland.

    I heard my learned friend Mr Eadie to say in his submissions that real clarity is required in a statute before the constitutional balance is upset. His submission, of course, was addressed to what he would suggest is the removal by statute of a well-established prerogative power, and on that, we agree with the claimants in Miller that that is to look at the matter from the wrong end of the telescope.

    But my Lords, my Lady, Mr Eadie is right to say, where a constitutional balance is being upset, clear statutory authority is required. And where what we have called a pillar of the constitution set out in the Northern Ireland Act is being removed or hollowed out, that can only be done by an act of Parliament.

    My Lords, my Lady, the third strand of issue one, this is an argument which is peculiar to the circumstances of Northern Ireland, it arises from the proves of the Northern Ireland Act giving rise to the Belfast agreement, which require -- sorry, giving effect to the Belfast agreement which require north/south cooperation in the context clearly, we say, of continued EU membership.

    The submission is that continued membership of the EU is an integral part of the scheme of the Act, on this basis, as well as the two bases just mentioned, and the royal prerogative cannot be used in a manner inconsistent with that statutory purpose.

    As the court will hopefully have seen from our written case, the British-Irish agreement, which we accept is unenforceable as a matter of domestic law but which forms the interpretative backdrop to the Northern Ireland Act, expressly envisaged that the UK and the Republic of Ireland would develop close cooperation between their countries as partners in the European Union. Your Lordships, and your Ladyship, will find that at MS 20373.

    That partnership, we say, is necessary because the Belfast agreement not only envisaged but required, as part of the north/south cooperation it established, the implementation of EU policies and programmes on an all-Ireland basis and a cross-border basis, or at the very least the possibility of such implementation.

    Now, we say that that is a core part of the scheme of the Northern Ireland Act, and the purpose for which the north/south machinery has been established in part 5.

    My Lords, my Lady, the kernel of our case on that point is set out in paragraphs 46 to 51 of our written case. It may be helpful if the court would turn briefly to strand two of the Belfast agreement. Your Lordships will find that in Northern Ireland authorities, volume 1, tab 14, beginning at MS 20354.

  • My Lord, Lord Wilson summarised the Government's case on this yesterday as being that the Northern Ireland Act does not carry this issue far enough. That is because we say the Secretary of State's submissions do not read strand two fairly and as a whole. The North South Ministerial Council is not, as the Government's case essentially suggests in paragraph 38, it is not merely a talking shop; it is set up as a joint executive body which is required to agree and implement policies, including EU policies and programmes on an all-Ireland and cross-border basis.

    Now, we say, my Lords, my Lady, that simply cannot be done if one part of the island is no longer a part of the EU. Now, none of that, we say, should be surprising in the context of the Belfast agreement and the British-Irish agreement, because the whole context of those agreements is a commitment to developing cooperation, growing closer together and increasing areas of mutual interest, rather than driving a wedge between Northern Ireland and the Republic, but it also emerges, we say, from a simple reading of the text of strand two.

  • How do you get this into the Northern Ireland Act?

  • I will come to that in a moment, my Lord; two reasons, perhaps three reasons. Firstly, my Lord, it is clear from the long title of the Northern Ireland Act that it is to implement specifically the Belfast agreement. We have seen that.

  • Not necessarily the whole of it, at any rate, carry on, yes.

  • The second point, my Lord, is as we know from Robinson, this document forms the interpretative background to the Act generally, and when we are looking at constitutional statutes, we are looking at, as we know from Axa, the general message. But perhaps, I hope most convincingly, we will see in a moment or two that a number of these provisions are expressly referenced either in the 1998 Act or in legislation flowing from it. I will come to that in just a moment, my Lord.

    If I might just very briefly run through some of the provisions of strand two.

  • As I have said, my Lords, that begins at MS 20354.

  • I will just summarise what we say is the effect of a number of the key provisions. Paragraph 1, the North South Ministerial Council is a joint executive body. It is designed to take action and implement policies on an all-Ireland and cross-border basis. At paragraph 3(iii), it is required to meet in an appropriate format to consider institutional and cross-sectoral matters, and that includes in relation to the EU.

    Paragraphs 5.3 and 5.4 and paragraph 9, it must make decisions on policies for implementation, both separately in each jurisdiction and on policies and action at an all-Ireland and cross-border level to be implemented by the implementation bodies.

    Paragraph 11, those implementation bodies will implement the relevant policies on an all-Ireland and cross-border basis.

    Then importantly, we say, at paragraph 17, those policies must include EU policies or at the very, very least, it must be possible for those policies to include EU policies.

    So your Lordships, and your Ladyship, see there, the council is to consider the European dimension of relevant matters, that is any relevant matter of mutual interest under paragraph 1. That must include the implementation of EU policies and programmes and proposals under consideration in the EU framework.

  • The Attorney General made the point that this would still be possible because the Irish Republic would be in the European Union.

  • I respectfully say not, my Lord, and that is why we say the Government's case and indeed the Attorney's case does not read strand two as a whole, because in paragraph 17, when one is talking about the implementation of EU policies and programmes, that is a reference back, we say, to paragraphs 1, 5, 9 and 11. Implementation in this context does not mean implementation in one jurisdiction only, it plainly means implementation at an all Ireland and cross border level.

    We see that phrase repeated a number of times through strand two.

    We say, respectfully, that is the key flaw in the Government's case. They say it is fine, there will still be things of mutual interest to talk about, but they don't appreciate the executive nature of the North South Ministerial Council and the implementation bodies which follow on, and that they are required to implement policies each side of the border. Finally --

  • Which provisions of the Northern Ireland do you say that this point assists in interpreting?

  • My Lord, part 5 of the Northern Ireland Act deals with the north/south machinery and architecture, and indeed in answer to your Lordship's question and that of my Lord, Lord Mance a few moments ago, these provisions are referred to and we say given statutory effect and essentially incorporated into part 5 in a number of statutory provisions in or under the Northern Ireland Act. So if I can give your Lordships a number of brief references, paragraph 5 of strand 2 is referred to in section 52(c)(5) of the Northern Ireland Act, that is MS 20105. That defines the obligation on ministers in Northern Ireland to participate in the North South Ministerial Council. It is not a matter of choice; they are obliged to operate these arrangements.

    Paragraph 11, of strand two is referred to in sections 53(5) and 55(5), that is MS 20106 and 20107. That defines the purpose of the implementation bodies. Then the scheme generally is referred to in article 2(2) of the north/south cooperation implementation bodies Northern Ireland order 1999, and the court finds that at MS 20253.

  • With the exception of paragraphs 5 and 11, the only reference you are telling us is in -- is it a statutory instrument, or is it -- does it have the force of a statute, the regulation?

  • It is a statutory instrument made under the Northern Ireland Act, my Lord, giving effect to it, because as the Attorney pointed out yesterday, there had to be a further agreement after this to establish the six implementation bodies, but we say, looking at this statute, the implementation of EU policies and programmes on a joint all Ireland basis is clearly a core part of the North South Ministerial Council's functions set out in part 5, and it is therefore likely to form a significant element of the work of several, if not all, of the implementation bodies which were required to be established by the agreements, and which were in fact established by the implementation bodies' order which I have just mentioned.

    So the point could rest there, we say, on the basis of the 1998 Act, but it is strengthened, we submit, when one has regard to the establishment of the special EU programmes body, which was one of the few implementation bodies agreed, north and south, and which was specifically set up by the 1999 order.

    Its functions are to administer EU programmes both north and south of the border, to assist both governments in continuing negotiations with the EU commission about future programmes, and indeed whose current work involves programmes extending into 2020.

    So, my Lords we say if there was ever any choice on the part of the North South Ministerial Council to leave EU policies to one side, we say that is an incorrect reading of strand two, but if there was ever such a choice, that choice has now gone by the legislative choice set out in the 1999 order. My Lords, my Lady, we say the work of this particular body and the statutory functions which have been assigned to it will essentially evaporate in the event that the UK and Northern Ireland leave the EU.

    It is not sufficient to say, as the Government does, that those who staff the body may still have some interesting things to talk about. These are bodies, see strand 2, paragraph 11, which must have a clear operational remit and actually implement policies on an all-Ireland, all-island, and cross-border basis. We say, my Lords, that this is not a matter of small moment.

    As the court will recall, the Belfast agreement makes absolutely clear that all of the arrangements hang together and are interlocking and interdependent. Your Lordships see that reference at paragraph 5 of the declaration of support, MS 20343 to 20344.

    So, my Lords, even if breaking faith with these agreements is something which as a matter of domestic law, Parliament can do, it can amend the 1998 Act, it can make clear that the North South Ministerial Council no longer has all of the functions set out in strand two, it can amend or scrap the implementation bodies' order or parts of it; the point we make is that that is something that must be done again by legislation, because otherwise legislation of constitutional significance would be frustrated or defeated by the effects of an Article 50 notice without parliamentary sanction.

    My Lords, before I move on to issue two, there is one further discrete submission I want to make in response to the Government's case on the devolution statutes. The Advocate General took a very broad brush approach to the devolution statutes, and said under each of them, foreign relations are expressly reserved and that the devolved legislatures have no competence in relation to them, and that therefore they can have nothing to say about the exercise of the foreign affairs prerogative. We say that in Northern Ireland that is not a correct starting point as a matter of law, and in any event the conclusion does not follow from the premise.

    Can I just give your Lordships a reference to paragraph 3 of schedule 2 of the Northern Ireland Act, which your Lordships will find at and your Ladyship will find, MS 20154. That makes clear that there are certain elements of international relations which are transferred to the Northern Ireland authorities.

    So carved out of the general accepted matter of international relations are north/south cooperation in relation to policing; the exercise of legislative powers to give effect to the north/south arrangements and agreements of implementation bodies; the observance and implementation of obligations under the British-Irish agreement; and effectively all of part 5 of the Act; and also observing and implementing obligations under EU law.

    So these are all areas of international relations which are not accepted and which are therefore transferred.

    But even assuming that international relations was entirely an accepted matter under the Northern Ireland Act, that says nothing about the power of the Westminster Parliament in that act to displace or abrogate the prerogative.

    My Lords, my Lady, issue two arises only if the court determines in this reference or in the Miller appeal that an Act of Parliament is required to authorise the giving of an Article 50 notice.

    The further question is whether that is a constitutional requirement in the United Kingdom, that the legislative consent convention be complied with. We say that it is, and on this issue we are supported again by the Lord Advocate, and again I adopt the Lord Advocate's submissions in his written case and hope to confine my submissions accordingly.

    Two brief introductory points, although as I see the time, it may be two brief final points.

  • I am afraid it might.

  • The first is this, my Lord: there is nothing heretical about a contention, particularly in a largely unwritten constitution such as ours, that a constitutional convention may be a constitutional requirement, even if it is not strictly a matter of constitutional law. In fact, my Lords, my Lady, that is an entirely orthodox view and it is covered in paragraphs 20 to 22 of the Lord Advocate's written case and paragraphs 122 to 123 of our written case.

    Conventions are non-legal rules but they may nonetheless be rules which are fundamental to the operation of the constitution, and the court has seen the reference to the Canadian case, the Canadian Supreme Court case, re a resolution to amend the constitution, which we respectfully commend on that issue.

    The final point, my Lords, is this. There is a temptation to rush to the endpoint on this question and ask what the result would be if Parliament legislated, in the absence of legislative consent from one or more of the devolved legislatures, and indeed that is how the Attorney General for Northern Ireland has framed the issue, perhaps for presentational reasons, but we are, we say, at this stage a long way off that point.

    If legislative consent is sought, it may be granted and certainly there would be likely to be, as Mr Gordon says in his submissions, engagement between the executive and Parliament and the devolved administrations. What we are asking the court to do at this stage is simply to clarify whether and how the convention is engaged, and the central case that we make on that, as you will see in our written case, is that this is an obligation on the executive to put Parliament in the position where it is informed on that issue.

    My Lords, I am sure that my learned friend the Lord Advocate will have much more to say on that question.

    My Lords, I see that I've got through about two-thirds of a speaking note that I had prepared. Time has defeated me. In the admittedly unlikely event that the court is overwhelmed with suspense about what the remainder of what my submissions would be, or if it otherwise thinks it would be helpful, I am happy to provide the full speaking note to the court and to my learned friends.

  • If you could make arrangements to do that when we rise or tomorrow, that would be fine.

  • I will do that. I am very grateful, my Lord.

  • Thank you very much indeed. I am sorry about the attenuated time. Thank you very much indeed, Mr Scoffield. Mr Lavery.