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

  • My Lord President, my Lady, my Lords, may I adopt my written case with the relatively brief supplementary remarks which I will make today and tomorrow.

  • Two days ago, Mr Eadie observed that constitutional issues have to be determined in light of current constitutional circumstances. I agree. I should say, my Lady and my Lords, I am going to make some remarks about the general issue before the court and then turn to the legislative consent question.

    On the general issue, others have focused on the effect of withdrawal from the European Union on rights and nothing I have to say is intended to detract from those submissions but I invite the court also to attend to the effect of withdrawal on the constitutional arrangements by which we in the United Kingdom are governed.

    I identify at paragraph 35 and following of my case some constitutional consequences of withdrawal from the European Union. If I may simply refer the court to those paragraphs.

    One might add to those constitutional consequences the effect which withdrawal from the European Union would have on the rule of recognition which applies in the United Kingdom. It is a point that my Lord, Lord Hodge made yesterday about withdrawal altering the sources of law and not simply the law itself.

  • Which was the paragraph you said set out --

  • It is paragraph 35 and following, my Lord. It is where I identify the --

  • No, I had the wrong case, I am sorry.

  • It is at MS 12585, and I identify that withdrawal -- and of course this is the point -- would deprive legislative, executive and judicial institutions which currently exercise power as regards the United Kingdom of that power and would mean that none of the legislatures and public authorities of the UK would operate within the framework, as they currently do, of European Union law. I make some other observations in those paragraphs.

    I say that the only body which has the legal power to authorise and effect such changes to the constitutional law of the United Kingdom, indeed to the constitution of the United Kingdom, is the Queen in Parliament, and I invite the court to take the view that the claim by the executive in this case to effect such changes to the law of the land by an act of the prerogative is inconsistent with the principles, the constitutional principles, articulated in the Claim of Right Act 1689 for Scotland and the Bill of Rights for England and Wales. Those can be found at MS 6358 and MS 4152.

    That 17th century legislation reflected and enacted in statute what I submit is an imperative rule of constitutional law which sets an outer limit to what may lawfully be done by virtue of the prerogative. The foreign affairs prerogative does not normally buck up against that imperative rule because of the dualist approach which we take to international treaties but when it does, in my submission, the prerogative gives way to that imperative rule of our constitution.

  • That is really a crucial proposition. Now, is there any authority for saying the one trumps the other?

  • Well, I start from the proposition that what I call the imperative rule is articulated in statute, the Claim of Right Act 1689, the Bill of Rights. But I also respectfully adopt and accept the submissions that have already been made to the effect that it reflects a basic constitutional principle of our constitution.

    Perhaps I can put it this way, that that principle enshrined in the 17th century constitutional statutes reflects and flows from a recognition of the proper institutional roles in a representative democracy as regards the law of the land of, on the one hand, the representative legislature and, on the other, the executive.

    That remains the case, notwithstanding that the nature of the our representative democracy has changed since the 17th century, and indeed notwithstanding that today, by the will of Parliament, we have four representative legislatures in the United Kingdom. It is perhaps not an entirely incidental point that when the United Kingdom was founded in 1707, it was to Parliament and not to the Crown that the power to change the laws in use in Scotland was given. That is Article 18 of the Act of --

  • Exclusively given?

  • Well, the power was given in terms of the Acts of Union.

  • I thought you said only by the British Parliament.

  • It certainly was not given to the Crown. To Parliament and its delegates, and of course Parliament has through the 1972 Act and through the devolution statutes, transferred legislative powers or acknowledged legislative powers on the part of others.

    I say that, if that is correct, then we are talking about the scope and limits of the prerogative power relied on here, and that is quintessentially a question of law for the court.

    Can I make clear that I do not contend that there is any speciality of Scots law as regards the prerogative that affects this case. First of all, the capacity of the Crown in right of the United Kingdom to engage in relations on the international plane on behalf of the United Kingdom is an incident of the Crown in right of the United Kingdom, and it frankly makes no sense to suggest that that might change in the different jurisdictions of the Union.

    Equally, the limits which Scots law places on the effects which acts of the Crown in the exercise of its foreign affairs prerogative may have within the domestic legal order in Scotland are the same limits as I understand English law to place on those effects, first of all, because Scots law adheres to the dualist theory, as English law does, and, secondly, because Scots law like English law contains the same limiting rule which I mentioned a moment ago which precludes the executive, I say, from changing the law of the land by an act of the prerogative.

    So, with those remarks on the general question and on the relevance of Scots law in relation to the prerogative, let me turn to the question of legislative consent. I say that the executive's claim in this case not only misconceives the respective roles of Parliament and the Crown in relation to the law of the land, but would elide the constitution the mechanism through which the question of whether the devolved legislatures, which have power to change the law of the land, consent or do not consent to legislation which has the effect with regard to devolved matters. It would elide the mechanism, the legislative consent convent, through which that consent is treated as an issue of constitutional significance.

    Can I make clear that I do not assert that the Scottish Parliament has a veto on the decision to withdraw the United Kingdom from the European Union. That decision is ultimately, I say, for the Queen in Parliament. What I do say is that the question of whether the Scottish Parliament consents or does not consent to the effects of withdrawal with regard to devolved matters is, by virtue to the legislative consent convention, a matter of constitutional significance. I will elaborate on that and explain what I say the position is.

    But, ultimately, I say that the approach that I invite the court to take reflects the proper institutional roles of the United Kingdom Parliament on the one hand and the Scottish Parliament on the other, in a context where the Scottish Parliament has wide legislative competence and where the effect of withdrawal from the European Union would be significant, with regard to devolved matters.

    In other words, in that context, it is constitutionally relevant and significant to know whether the Scottish Parliament consents to those effects. It is then for the United Kingdom Parliament to decide, in light of the views of the devolved legislatures and its own assessment, what to do.

  • I should say Mr Wolffe, for those of us at the edges of the room, it would help if you keep your voice up.

  • I do apologise, my Lord, and I hope the transcript will at least pick up what I am saying.

    Yesterday, I think it was yesterday, Mr Eadie reminded the court of the magnitude of the task which is presented by withdrawal from the European Union and the United Kingdom Government will, I hope, not dispute the magnitude of the task which withdrawal will present not only for the United Kingdom Parliament and the United Kingdom Government but also for the devolved legislatures and devolved administrations and I have given examples and illustrations at paragraphs 43 to 49 of my case, but I can perhaps summarise the points in this way.

    First of all, directly affected European law in policy areas which are within the legislative competence of the Scottish Parliament will lapse, to use Mr Eadie's word. Legislation enacted by the Scottish Parliament and Scottish Government which depends for their operation on the subsistence of applicable European law will become potentially ineffective and one might think for example of the regulations which deal with the administration of the Common Agricultural Policy. Other legislation made by the Scottish Parliament and the Scottish Government which cross-refers to EU law will have to be considered from the point of view of whether it can operate or can operate as intended when those laws no longer apply.

    At a constitutional level, withdrawal from the European Union will effect a significant change on the legislative competence of the Scottish Parliament and the executive competence of the Scottish Government.

    Mr Eadie accepted in response to a question from my Lord, Lord Reed, that section 2(1) of the European Communities Act would become redundant on withdrawal. In my submission, the same is true of section 29(2)(d) of the Scotland Act, which is at MS 4360, section 57(2) of the Scotland Act, which is at MS 4368, and paragraph 7(2)(a) of schedule 5 to the Scotland Act, which is at MS 4379. These are the provisions which limit the competence of the Scottish Parliament and the competence of the Scottish Government by reference to EU law and the provision which provides that the reservation of international relations has an exception, namely an exception for the observing and implementing of EU law.

    So I say that at withdrawal those provisions become disabled, to use the word that is in the Claim of Right Act, they become redundant. I say if a bill were to come before the United Kingdom Parliament which changed the competences of the Scottish Parliament or the Scottish Government in these ways, let alone the other effects with regard to devolved competence, then such a bill would engage the legislative consent convention.

    Can I perhaps draw the court's attention in that regard to the explanatory notes to the Scotland Act 2016. It is quoted in my case at paragraph 76 at the top of page 4, and it appears in the bundle at volume 30, tab 407, MS 10379 -- and I should say the reference in my case is a misreference, it should be to number 407 at MS 10379. In the explanatory notes to the Act it said:

    "This Act required a legislative consent motion from the Scottish Parliament on the basis that it contains provisions applying to Scotland which alter the legislative competence of the Scottish Parliament and the executive competence of the Scottish ministers."

  • We are having difficulty finding the passage you are referring to.

  • Sorry, my Lord. It is quoted in my written case at MS 1612.

  • It is paragraph 76, subparagraph 4, right at the top of the page. It is paragraph 9 of the explanatory notes.

  • Yes, that is what is at 10379, is paragraph 9 of the explanatory notes.

  • Indeed, my Lady.

    Indeed there was a legislative consent motion and the Act was passed.

  • The Scotland Act 2016 changed the competences of the Scottish Parliament.

  • And the legislative -- and the executive competence of Scottish ministers, and of course the point that I make is that it is explained to Parliament in the explanatory notes that the Act required a legislative consent motion, on the basis that it contains provisions applying to Scotland which alter the legislative competence in the Scottish Parliament and the executive competence --

  • Where do you get the binding nature of the legislative consent motion? You get it from the Sewel convention and from the enactment in the Scotland Act?

  • I say two things, my Lord, I say first of all that this court is concerned with what are the constitutional requirements of the United Kingdom under Article 50, and I say that it is of the nature of conventions that they constrain the legal power of actors within the constitution to act in accordance with the constitutional requirements.

  • What is it -- that raises the question what a constitutional requirement is and whether -- it is a question of European law, isn't it?

  • It is ultimately, it may ultimately be but I don't think the United Kingdom --

  • The United Kingdom has not disputed, and I don't think -- I would be surprised if it did dispute that in principle a constitutional convention could be a constitutional requirement.

  • For a constitutional lawyer, no doubt it is, but for a lawyer ... perhaps I should have said for a constitutional specialist, it might be a requirement but for a lawyer ...

  • Well, I say that it is germane to the -- it is germane in two ways here. First of all, the Attorney General has invited this court to answer a question, the Attorney General for Northern Ireland has invited the court to answer a question about legislative consent, albeit directed to Northern Ireland; and I also made the submission a few moments ago that the approach that the UK Government is taking here elides not only the proper role of the United Kingdom Parliament, but, I say, of all the representative legislatives of the United Kingdom whose interests are in our constitution protected through the legislative consent.

  • I see that point, but can we be specific; do you in the last instance rely on the Scotland Act, the reference, the incorporation of the Sewel convention as law?

  • I would certainly make the submission -- even if it wasn't, if it had not been incorporated into law by section 28(8), I would make the submission. Of course I have the benefit that the convention has been incorporated into statute, and if I could put it this way, in a legal system where the basic rule of recognition is that what the Queen in Parliament enacts as law, that has transformed the juridical status of the rule from a convention into a rule of law.

  • I wonder about that, Dean of Faculty, because we will look later at the wording of the provision, but it talks about recognising something. It says -- in subsection (7) it gives the principle which you accept and then it is said: but it is recognised. And it can clearly have legal effect. Insofar as political conventions can change with political practice over time, you can say that subsection (8) prevents its disveritude(?), as it were; in what other sense is it converted into a rule of law?

  • In the very straightforward sense that it has been enacted into statute, and I can give the court -- the learned Advocate General referred the court to the Canadian patriation case, which raised a question not very dissimilar from the one that this court has to deal with on this issue. In the patriation case, the court divided on whether it would answer a question about whether a constitutional convention of consent by the provinces was required, and the majority held that they would.

    All of the judges agreed that in the true sense, if a convention is not a rule of law, and they all spoke to the potential transformation of a convention by statute, and the references can be seen at MS 8834, in the opinion of the minority, and 8845 in the opinion of the majority, MS 8834 and MS 8845.

  • Mr Wolffe, I think many of us are struggling to see exactly how the Sewel convention impacts on the central issue before us. Are you saying simply that the impact is this, that if and to the extent that the Sewel convention would politically oblige Parliament to consult the Scottish Parliament before triggering Article 50, that is an extra argument for why this is a matter for Parliament rather than the executive, or does it fit in in another way?

  • I do say that. I also say, I also say, and it is fair to say I come to this case recognising that the Attorney General for Northern Ireland has asked a specific question, albeit focused on the Northern Ireland situation, which raises directly for the court a question which falls to be answered or not answered, if the court takes the view that it cannot appropriately be answered; and that it is right that I make clear what my position is in relation to the convention.

    But I do say that on the essential point raised in Miller, that we now are looking to the constitution as it currently exists, we not only have the basic rule which I outlined at the outset, that it is for the Queen in Parliament to change the law of the land; but in a context where we have four legislatures which can change the law of the land, we have a structure of constitutional convention which engages the -- entitles those legislatures to have a voice in the decision.

    Perhaps I shall make this point at this stage. I drew the court's attention to the explanatory notes to the Scotland Act 2016. Similarly, the Scotland Act 2012, where again the legislative competence of the Scottish Parliament was changed, engaged our legislative consent requirement, and the court can see the explanatory memorandum for that act at MS 10369, paragraph 8.

    Indeed my Lord reads remarks about the Sewel convention in Imperial Tobacco, volume 5, tab 41, MS 1619, were expressly directed to changes to legislative competence.

    So in my submission there is no -- there should be no dispute that the legislative consent convention applies where there are changes to the legislative competence or executive competence of the Parliament and the Government. That has reflected consistent practice which I have sought to provide information about in the narrative in my case.

    What that illustrates in particular, what the application of the convention to the two(?) Scotland Act illustrates, is that a bill may relate to a reserve matter, one which the Scottish Parliament could not itself enact. But may nevertheless, insofar as it has effect with regard to devolved matters, engage the requirement for the consent of the Scottish Parliament.

    So my learned friend the Advocate General's argument where he points to the reservation of international relations in my submission is --

  • -- guilty of the fallacy that simply because something is reserved, it cannot engage legislative consent convention, that is simply not the case. That fallacy also underlies the reasoning of Mr Justice Maguire in paragraph 121 of the --

  • Which paragraph, please?

  • It is MS 742, paragraph 121 of McCord where his Lordship essentially said, because international relations are reserved, therefore this is nothing to do with the Northern Irish assembly.

    What I say is that if a bill were presented to the UK Parliament, which had the effects for the competence for the Scottish Parliament and Scottish Government which will take place on withdrawal from the EU, and which had all the other effects within devolved competence, then there would be no doubt in my submission that that engaged the legislative consent convention.

  • I don't suppose there is any definition of either "with regard to" or "devolved matters"?

  • One of the interesting points, I am going to make a short submission about interpretation directed to section 28(8).

  • We have had a lot of case law on what is meant by, relates to reserved matters.

  • It is an important point, my Lord, that the phrase, "with regard to devolved matters", does not use the conceptual language that is used elsewhere in the Scotland Act. Rather it points back to language which appears in the memorandum of understanding and which has been articulated in practice. It points back, I say, to the convention as it has been applied in practice and indeed the word, it is recognised that, again is pointing one back to the practice, as regards the convention.

  • Really you have to argue that an act -- hypothesising an act which authorises the Government to give notification under Article 50 is an act which legislates with regard to devolved matters, essentially because of its -- because it has a consequential impact on some devolved matters.

  • Absolutely, my Lord, and perhaps I should put it this way, and it is perhaps helpful to test the argument by assuming a one-clause bill that determines to withdraw the United Kingdom from the European Union, and I do make the point that it would have to be a bill making that decision, not -- and no doubt consequentially authorising the notice.

    But I say that within that proposition are a whole series of effects with regard to devolved matters, and if Parliament were to unpack the headline proposition, and in separate clauses say all the things that legally would be happening with regard to devolved matters, then it would be plain that the convention is engaged, and I say that it cannot matter as a matter of substance that those propositions are simply implicit in the headline proposition of a determination to withdraw from the European Union.

    It may be helpful if I invite the court to look at section 28(8), so that I can perhaps make clear what I am saying and what I am not saying about it.

  • The court has that at tab 124 in volume 12 at MS 4359. Can I say immediately that since this is a provision which satisfies our rule of recognition, the question of its meaning and effect, well, perhaps firstly the question of its effect and then of its meaning, are matters of law for the court.

    Can I say that I accept that it is a provision which requires to be construed against the background of relevant constitutional principles. So I acknowledge that it does not displace the Pickin rule and if -- the validity of an Act of Parliament once enacted could not be, I say, challenged under reference to an alleged failure to respect section 28(8).

    I also acknowledge that article 9 of the Bill of Rights is part of the relevant constitutional context and that, it may be, is relevant to what the court is to make of the word "normally".

  • Will you be addressing us, Lord Advocate, at some stage on any precedents for the use in statute of the words, "it is recognised that"?

  • I can certainly see if I can put myself in a position to do so, my Lord.

  • Equally, "normally" is not a word one sees very often sees in statutes.

  • Indeed, my Lord, and I accept that the word "normally" implies that there may be circumstances in which the -- where an act will be passed notwithstanding that the consent of the Scottish Parliament is not forthcoming, albeit I am advised that that has never happened, at least knowingly, where legislation is proposed with regard to devolved matters.

  • Is the question what is normal justiciable?

  • In the context of article 9 of the Bill of Rights, I accept that -- I find it difficult to imagine how it would engage a justiciable issue.

  • What if Westminster Parliament could be shown to flagrantly be in breach of the provision, that it legislated continuously on matters of the Scottish Parliament, so that the norm became that they did legislate rather than that they refrained from legislating?

  • Indeed, my Lord, I proceed on the assumption that Parliament will do what it has said it will do in this provision.

  • It is a pure question of justiciability; it is possible to conceive, albeit on a somewhat outlandish scenario, but it is possible to conceive of circumstances in which it could be --

  • I can see that, my Lord, I can see that, my Lord. Perhaps I can put it this way: I don't need to make an argument about the word "normally" in this case, because what I say is that the phrase "with regard to devolved matters" is one upon -- it is a phrase upon which the court can adjudicate.

  • But it doesn't have any effect, you say? If the UK Parliament does breach this convention, and breach this convention as recognised in this section, you say it doesn't have any effect. So what is the argument that we would be entitled nonetheless to stop the UK Parliament doing it, if it was proposing to, and -- I suppose the further question is what is the relevance of this? We are not talking about the UK Parliament legislating, we are talking about a case where it is proposing to use its executive powers.

  • I say two things, my Lord, in response to that. I say first of all that it is -- perhaps on the second point, I have already made the submission, that part of the current constitutional context in which the court should consider --

  • If you cannot legislate, you cannot do other things, is your basic point, is it?

  • The basic point is that, when one is testing whether the Crown can by the prerogative change the law of the land, one has to keep in mind that in the current constitutional arrangements, there are several legislatures that have an interest in that question.

  • Not even Parliament can change, you say, so how possibly could the Government?

  • I say there is a convention, a constitutional requirement, I would say, that Parliament has itself acknowledged in statute.

  • I think what you can say is that Parliament at the very least commits itself to the question whether it should legislate within -- on a matter which is within the competence of the Scottish Parliament, it would be incongruous with that situation that the Government would in effect change the law of Scotland.

  • Absolutely. Absolutely, my Lord.

  • I suppose you have to read subsection (8) also in the light of subsection (7), which tells us about the section as a whole, (Inaudible) not affecting the power of the Parliament of the UK to make laws for Scotland.

  • Yes, but, sorry, my Lord, I might just --

  • I don't dissent from Lord Reed's proposition.

  • You deal with the questions in turn. We will not ask you any more until you have finished.

  • I am happy to deal with questions and points, but the other point that my Lord, Lord Mance put to me is -- perhaps I can answer in this way. We are concerned with the decision which falls to be made by the United Kingdom under Article 50 of the treaty.

  • The United Kingdom has to make that decision in accordance with its constitutional requirements. I say that those constitutional requirements include an Act of Parliament --

  • And legislative consent.

  • And the legislative consent.

  • Would it be a catastrophe for the devolved settlement if one read subsection (8) as simply a non-legally binding or legally effective douceur.

  • What I will say, my Lord, is there is plenty of evidence, including statements by the United Kingdom Government which I have referred to in my case about the importance of this convention to the working of the devolution settlement.

  • I am sure the convention -- conventions are incredibly important, but they are not legally binding. That is their nature.

  • Indeed, and what I can also say is that the United Kingdom Parliament decided that this convention should be enacted into statute and I might put my Lord's question -- perhaps answer it with what it would be impertinent to suggest is anything other than a rhetorical question, which is, what was the point in enshrining this in law if it doesn't become a provision that the courts can address.

  • It may be it would have looked a bit bleak, subsection (7), by itself.

  • It was there for quite a long time.

  • But subsection (7) is not qualified. It does rather look as though subsection (8) may be symbolic or a douceur, as Lord Mance --

  • Well, my Lord says subsection (7) is not qualified, subsection (8) is introduced by the word "but".

  • But you can give legal content to it, that it is more than a douceur, if you say that, as I said at the outset of my engagement with you, it was preventing the convention from slipping away by disveritude or a change of practice, it is a recognition that this a convention that is to apply. That doesn't make the convention a rule of law. It is merely recognising it as something that is fixed, as a convention.

  • I would put it this way, my Lord, that, as a provision and an Act of Parliament, it is part of the law of the land. What its effect and interpretation are are matters upon which the court may properly adjudicate.

  • You can ask us to say what does section (8) mean.

  • And what effect does it have in a particular context.

    It is perhaps important to address the question in the context in which we are currently considering the question, which I accept is one where there is no bill before Parliament, there is no question of the court being asked to interfere with proceedings in Parliament, there is no question of me inviting the court to invalidate its statute even in the extreme hypothesis that my Lord Kerr put to me.

    We are at a point in the process where this court is seized of the question of what the constitutional requirements of the United Kingdom are to make the decision, the important decision, to withdraw from the European Union and what I am inviting the court to do is to acknowledge in the Miller case, for the reasons I have outlined, and in the Northern Irish case in response to the Attorney General's second question, that one of those requirements is the convention.

    My Lord, I don't know whether that is a convenient point to --

  • If it is convenient for you Lord Advocate, yes.

  • Yes, I am planning to break there and resume again in the morning.

  • We will resume again at 10.15, and I think you have half an hour, is that right?

  • And you are on course for that?

    Thank you very much. We will adjourn now and resume again at 10.15 tomorrow morning. The court is now adjourned.

  • (The court adjourned until 10.15 am the following day)