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

  • My Lords and my Lady, on behalf of the Counsel General for Wales who sits next to me, I want to make it clear at the outset if I may that the position of the Welsh Government and the Counsel General is that the result of the referendum to leave the European Union should be respected. Uniquely of those parts of the United Kingdom exercising devolved powers, the vote in Wales, as this court will know, was a vote to leave the European Union. May I therefore put it bluntly. Wales is not here because it wants either to stop or to stall Brexit or the implementation of Brexit. It is here precisely because the constitutional issues at stake go far beyond Brexit, as indeed, with the greatest respect to this court, many of the questions have shown.

    In the time available and subject to your Lordship's approval I would like to do three things. First of all, to state what we believe to be the fault line that lies through the whole of the Government's arguments, and the consequences in law of that flawed reasoning, and I can do that very quickly but it is a point that has not yet emerged very clearly.

    Secondly, to make some general points about the constitutional principle at stake and why that is so important in the context of devolution.

    Thirdly, your Lordships will have seen the two core propositions of law for which we contend at paragraph 4 of our case, to develop those two points.

    So can I start with the fault line that we that we say lies through the Government's approach to this case. As we understand it, the whole case has been advanced on the premise that the treaty-making prerogative is as wide as Mr Eadie asserts. That is to say that the analytical starting point for consideration of the power he claims is a treaty prerogative to make and unmake treaties. Full stop.

    Now, at first sound, that seems plausible but it ignores the most basic and elementary constitutional principle of all, which is that whatever else the prerogative may do, it may not dispense with laws passed by Parliament and I will call that, if I may, the dispensing principle: that constitutional principle has been with us since the Bill of Rights, it has never been modified and it cannot be modified by a court in our very respectful submission, even if to do so may be temporarily expedient in the interests of a flexible constitution.

    The argument by my learned friend Mr Eadie simply forgets that principle. In forgetting it, he is able to derive false comfort from a raft of cases, De Keyser and all the rest of them, and by doing so he has nothing whatever in terms of principle to answer the case against him and as I hope to show, this can be developed in nine short propositions. I am not going to develop the propositions, I am just going to state them because they are building blocks to understand why this case is flawed.

    First of all, proposition one, this is a case about a claimed power to trigger Article 50 under the prerogative. So it is a claim of a power, a prerogative power. Not a statutory power, the prerogative power.

    Secondly, there is no dispute that the Government enjoys a prerogative power to make and unmake treaties.

    Third point, perhaps the critical point, however, there are certain general prior constraints, legal constraints that apply to all types of prerogative powers.

    Fourth point, the most fundamental prior constraint is that the prerogative may not be used to dispense with laws. That principle is at least nominally understood to be accepted by the Government.

    Fifth point, there are other constraints, other legal constraints, and this court will recall Lord Pannick's invocation of many principles. They include the principle that the prerogative may not be used to nullify rights or frustrate statutory schemes, but the dispensing principle goes beyond rights, it goes beyond subverting statutory schemes, and it extends to altering the content, or, as we would put it, striking a line through a statutory provision.

    Sixth point, again, in our submission critical, where there is no existing prerogative power, no question of whether Parliament has abrogated or revived the power arises. This is elementary, a child of six, with respect, could understand this point.

  • That is very well put.

  • I say a child of six could understand this point, because if you tell a child it cannot go out and play in the garden but it can play in the house, it has no power, the analogue, to going out in the garden. If you have not got a particular power to do something, because to do so would violate a prior constraint, you simply don't have the prerogative power. So to accept that there is a treaty-making power, does not mean that there is a treaty-making power to dispense with laws or to subvert statutory schemes, or to crucify human rights.

    My Lord, the seventh point, the first stage of analysis, therefore, is whether triggering Article 50 will dispense with laws. We say that it will with reference to the Government of Wales Act 2006. Lord Pannick has put forward arguments we endorse, that fundamental rights are overridden by reference to the European Communities Act. So, proposition eight.

  • Mr Gordon, can I stop you. You seem to be saying there is an important difference between whether you have the power and whether you are abusing the power.

  • I mean, your child analogy does not really work, because obviously the child is told he cannot go out in the garden, still has the power to go out in the garden, and indeed he may well disobey the constraint and do it. So I am not sure that gets you very far. But in this context, why do you say this goes to the existence of the prerogative power rather than simply being constraint imposed by the common law on the exercise of it; does it matter?

  • It doesn't matter, because if Parliament legislates, envisaging the exercise of prerogative power, which is my learned friend's case, you have to ask yourself, can Parliament possibly have legislated for the exercise of an illegitimate power, to which the answer is obviously no. If in fact prerogative power cannot be used to dispense with laws, it is inconceivable that the European Communities Act could have legislated for what Mr Eadie called the rest being the prerogative, to take us out of the European Union.

    So the distinction, the semantic, with respect in my submission, distinction between illegitimate exercise of a power and the existence of a power falls away when one appreciates that there simply could not be a legislative intention to contain within a statute an illegitimate use -- envisage illegitimate use of the prerogative.

  • Sorry, I don't want to press you but you said there was a simple principle, which is that you cannot use -- a prerogative cannot be used to dispense with law.

  • That is backed up over centuries. I don't think anyone disputes that.

  • Why do you need to put it in other forms, like frustrating intention? All these are really different ways of expressing the same point, which is a clear principle of law, that you cannot use the prerogative to dispense with laws.

  • My Lord, we rely on the dispensing principle because of its particular application to devolution.

  • But you are absolutely right to say whichever one or more of Lord Pannick's principles we take, the analysis will still be the same.

  • Yes, I mean I find personally confusing to start talking about frustrating intentions and this sort of thing, when what you are arguing for is a simple principle that you can not use prerogative to dispense with laws, see Bill of Rights and so on.

  • See also my learned friend's case.

  • Dispensing with laws in Wales.

  • But those are your fourth and fifth propositions that you have given us, in effect, that it is all encompassed in the prohibition against dispensation.

  • What I am trying to do is provide a suggested analysis for structuring the arguments that we have heard. The last point is this.

  • I think we have only got to seven.

  • I am up to nine, my Lords.

  • You had got to number seven, you said you had eight.

  • I've got nine now. Proposition seven.

  • Quality not quantity we are concerned with.

  • Proposition seven is the first stage of analysis is whether triggering Article 50 will dispense with laws. That is the overarching principle. Proposition eight, if triggering Article 50 will dispense with one or more laws, that is the end of the matter; the question of abrogation simply does not arise. Why doesn't it arise? Because there is no relevant prerogative or use of prerogative for it to arise. Nothing is being abrogated. The abrogation has started with the immediate bar to a prerogative power ever being used, capable of being used to dispense with laws.

  • I think Mr Eadie would say you are bypassing or eliding a question of importance on this aspect of the case, which he says is the proper construction of the 1972 Act, what is its effect; and he says that properly read and applied in context, it does permit the Government to do this. You are starting almost with the assumption that it doesn't.

  • No, I am not starting with that assumption, my Lord.

  • Then haven't we got to consider the Act, and consider whether you are right in your assumption or your assumption that the Government cannot change the law, cannot take away rights, whereas Mr Eadie says it is inherent in the statutory scheme that it can.

  • Yes, can I come back to your Lordship's question after giving the ninth proposition. The ninth proposition is that if we are right so far, the Secretary of State's reliance on De Keyser and the entire statutory scheme following the 1972 Act, that is all the other acts we have been talking about in this case, is also misconceived because it jumps the first stage of analysis. That is the prior constraints.

    Coming back to your Lordship's question, I have not elided it, because proposition seven is that we say that use of the prerogative will dispense with laws.

    Now, if -- and this is why I wanted to put it in that way -- if we are right about that, we win and the Government loses. If the proper construction of the 1972 Act is that, and I will put it in colloquial language and I think your Lordships and your Ladyship will follow it, if there is a clamp on the conduit pipe, so that there are no relevant laws, rights, whatever, that could ever be dispensed with, then I would accept that the Government would win the case.

    In other words, there is a question of construction, your Lordship are right but may I at this stage seek to clarify a real confusion that has crept into the language of this case, and that is the use of this word "clamp", because there is no relevant use of the word "clamp" that can relate to the prerogative. Either the prerogative exists when the legislation is enacted or it does not.

    There is a relevant use of the word "clamp" on the narrow point of construction, as to whether rights are as contingent as Mr Eadie contends for. So using the word "clamp" on prerogative is a very dangerous analytical, in our submission analytical mistake. If we are right on this analysis, the only question for your Lordships and your Ladyship, given the concessions that have been made and given what we know about Article 50, what is the real meaning of the 1972 Act.

  • Can I just interpose there. You are focusing in answer to my Lord on the 1972 Act, and looking at the Counsel General's case, I thought that some new issue was being addressed, which related to the devolution legislation. I don't see any focus really on anything else. We have had a lot of argument about the 1972 Act, Mr Eadie has made extensive submissions and Lord Pannick has replied.

    But I thought that your case was a separate case, namely to say that even if the 1972 Act didn't -- will allow the use of the prerogative in the way that Mr Eadie submits, nonetheless the devolution legislation makes it impossible; that is also part of your case, is it?

  • It is part of it, but I think the most important part of it is this: that the Advocate General for Scotland seeks to knock out our case by saying, if Mr Eadie is right on the construction of the 1972 Act, the dominoes fall and we must lose.

    The answer to that is not necessarily but more importantly, you cannot view the 1972 Act in isolation. Because when we get to the devolution legislation, our point, and simple point, is that the detailed machinery of conferment of power in that statute can be read alongside -- in fact all the statutes in relation to this point need to be read in pari materia.

    But the simple point here is that the devolution legislation has deliberately prescribed a legislative scheme relating to the competence of the Assembly, a constraint that one cannot act incompatibly with EU law. The Advocate General says you don't need that provision, never needed to legislate that. There was a deliberate choice to put that provision in, and it was put in in full knowledge of the 1972 legislation and what it meant.

    So the devolution legislation is highly relevant, both in terms of the framework of that Act, and also in terms of its impact on the proper interpretation of the 1972 Act. That is how we put it.

  • That is quite a bold submission, isn't it? How can the devolution legislation construe an act passed over 20 years before?

  • My Lord, we simply say that -- when I get to it hopefully the submission will be a little clearer, but we simply say that when you look at the detailed machinery of the Government of Wales Act, what you have is a supervision by Parliament and/or Parliament and the National Assembly for Wales, of all legislative, all changes to competence within schedule 7. It would be astonishing if the prerogative could be used to effect a legislative change much greater than the ones in schedule 7. So as a matter of statutory interpretation, certainly we say that is the effect of the Government of Wales Act.

  • That is similar to what the Lord Advocate said towards the end of his submissions this morning.

  • Absolutely, but the point being, in our submission anyway, and maybe I don't even have to get into this because we are not revisiting the 1972 Act; that is a matter on which Lord Pannick has argued his case. We say he is right. But in any event, we do respectfully submit that the -- sorry, my Lord -- we do respectfully submit that the construction of the Government of Wales Act 2006 is all of a piece or is likely to be considered to be all of a piece with interlocking legislation. We say that interlocking legislation gives the clue, or actually it decides certainly in our favour what the Government of Wales Act means, but it may be useful in your Lordships and your Ladyship looking at what the 1972 Act means.

    My Lord, may I then move on to say this, that if we are right in this suggested analysis and if your Lordships were with us on the point of construction on the 1972 Act and/or the Government of Wales Act, and/or, I should add, taking up Lord Carnwath's point, any of the other principles that Lord Pannick has developed and articulated, and ditto for Mr Chambers, as far as, then we cannot see how the De Keyser line of cases has any relevance to these appeals.

    They are analytically irrelevant because nothing is being abrogated and picking up the language of clamp to deconstruct it, nothing is being clamped because there is nothing to clamp. The principle of non-dispensation has already aborted the possibility of using prerogative power in that way.

    So if we are right so far, the difficulties for my learned friend Mr Eadie go even further, because he has not put forward any competing principle. What was astonishing in the divisional court -- we were spectators there because we had a noting brief, we were noting down what was said; at one stage in the argument in the divisional court, Mr Eadie was suggesting to the divisional court that they should prefer the De Keyser line of case law over the common law principle of legality, but if the De Keyser line of cases is analytically irrelevant, there is nothing to compete with all the principles that have been articulated so far.

    What we say is that these points all crystallised when, on the first day, my learned friend Mr Eadie was asked: isn't it important -- asked, I think, by Lord Sumption -- isn't it important to know what we are talking about. The answer is in the transcript, but we had understood Mr Eadie simply to go back in circular fashion to say: well, it is a very wide power; in other words he didn't put forward anything that I can deconstruct because there is nothing to deconstruct.

    So that is stage one of my submissions. The fault line running through the Government's whole argument.

    The second area that I just wanted to make a few points about is the constitutional principle at stake. Of course in one sense we all think we know what the constitutional principle at stake is. But may I suggest two broad questions which your Lordships and your Ladyship may wish to consider in analysing all these cases, and they are at a very high level, a very general level.

    First of all, is there a fundamental constitutional principle against which the legality of using the prerogative can be tested, an overarching principle, and this court knows what I have suggested.

    Secondly, and this is where Sewel comes in, excuse me, independently of the answer to that question, how should the common law approach the legal scope of the treaty-making prerogative in a context such as this?

    What I mean by that is, there is no doubt whatever that even if none of the principles I contended for were relevant, that is to say the non-dispensation principle hadn't been breached, none of the other principles had been breached, we are still looking at a situation in which prerogative power is being sought to be used to drive through the most major constitutional change in our system for -- at least since 1972.

    One has to analyse, one has to put it in this way, which is the way we do put it, we do not put Sewel in the way that the learned Lord Advocate does. Nothing I say is intended to diminish any of his submissions, any of the force of his submissions.

    What we do say is that when one is lacking at the legal scope of prerogative power, it is essential to analyse it against a common law framework. Whether or not the prerogative is a creature of the common law, undoubtedly its limits are bounded by the common law, and there are many ways in which the scope of prerogative power can be tested against common law thresholds.

    One threshold is what the books say, and I am not going to repeat the Diceyian views which now have become perhaps something of a cliche, but are nonetheless important, but the prerogative power is residual. It does not mean it is not important, but it is residual.

    One looks at the books first of all to consider what are the criteria of determining the legal scope of prerogative power, but one looks and I agree, we agree with my learned friend Mr Eadie about this, one looks at the fact that we are in a modern evolving constitution.

    In the last 50 years or so, it is axiomatic that we have developed a constitutional consciousness; witnessed the development of the common law notion of constitutional statutes; witnessed since 1960 the development of modern judicial review; witnessed the bringing into force of the Human Rights Act. But most of all from our perspective, witnessed the emerging and fragile, at the moment, devolutionary development. And then look at the trajectory of the prerogative against the trajectory of these developments.

    We respectfully submit, and one doesn't need to go into detailed documents to arrive at this conclusion, that the prerogative is declining; there is undoubtedly a wish, we see it as recently as 2008, the Brown Government wanted to make all prerogative powers statutory at one stage. Indeed, I think Ms Mountfield and I were both on a committee which had to respond to a consultation.

    The prerogative measured against the trajectory of devolution simply does not match, and yet what is being said here is that as a matter of common law, the prerogative can be used, as I say, without any recourse to Parliament, to drive through the most major constitutional change certainly of the last, I would say, 40 years.

    It has become the motor of our constitution, rather than the secondary residual power, but this fits in very much to our argument about Sewel, which I want to make in this way.

    Sewel is a convention, nobody doubts it. The convention, and I will use this phrase again, I am sorry because I am fast forwarding to what I am going to say later but the convention is a very important force, constitutional force in our society. The reason why it is such a constitutional force is that it is the glue and the only glue that can really hold an unwritten constitution together.

    We do not have rules, we have laws, we have an aggregation of laws. How does our constitution develop? It develops through incremental practices, and the Sewel convention in the emerging context of devolution is a very important constitutional force. We say, when we get to it, that the courts, the common law, can take cognisance of conventions in a way that has nothing to do with the legal enforceability of those conventions and, with great respect to the advantage Scotland has over us in one sense, has nothing to do with whether it is in a statute. But if it is in a statute, and it soon will be in the Government of Wales Act, we think, if that happens, that shows the way things are beginning to solidify.

    So can I come back to what at heart these appeals are really about. They are really about the proper distribution of power between Parliament and the executive in our society. What I wanted to say was each of the organs, each of the institutions of our state, of our constitution, play complementary roles; no one dominates the other but each one dominates the other in its own sphere.

    So the judiciary are the total judges of the interpretation of law and the development of the common law. The executive is totally supreme in giving effect to policy, provided that policy is enshrined in law. And Parliament is supreme in making law.

    That is why the overarching principle that I have tried to articulate, under the broad umbrella of the non-dispensing principle, is so important; and the legislative supremacy of Parliament over the executive is an axiom in our society. Indeed, my Lord, Lord Neuberger, in a case decided as recently as 13 July this year, in the context of subordinate legislation said this. It is the Public Law Project case, paragraph 23:

    "In declaring subordinate legislation to be invalid, the court is upholding the supremacy of Parliament over the executive."

    So, my Lords, what is really clear, if one just has one's feet on the ground for a moment, in the context of the Brexit vote, the Brexit vote split the United Kingdom. It split it into four parts. We have absolutely no quarrel with the vote. It is an United Kingdom vote. And it is a majority for the implementation of Brexit. But the point is this. It is almost the most divisive political event that has happened over the last several decades, and who is going to judge what happens next, according to law?

    In our submission, whether one approaches this matter from the perspective of the dispensing principle, or whether you approach this matter from the perspective of the common law, it must be Parliament. All the recent events have nothing to do with this case, in particular, and I say it very respectfully, but in particular the Referendum Act of 2015 has absolutely nothing to do with the legal issues in this case.

    The referendum results, I think, was discussed in argument yesterday. It is a statute that has died, it has fulfilled its purpose and you cannot revive a corpse by tearing up the death certificate. You cannot revive the 2015 Act and give it a separate purpose, which is to in some way become a normative statute, because to do that is to give a statutory power and not a prerogative power. There is nothing in the 2015 Act that can say anything sensible about the prerogative.

  • Can I just ask you then, in relation to the 1972 Act, assume that we were to take the approach that Mr Eadie suggests, namely that the royal prerogative to make and unmake treaties continues to be available, so that effectively the operation of the treaties, at least their direct operation and the regulations under them, ceases; you then have to argue that the devolution legislation makes a difference. You were just arguing that the 2015 Act makes no difference.

    What provisions in the devolution legislation make a change in that basic position, on that hypothesis? Your case refers to the restrictions on competence, by reference to EU law but -- and also the Welsh authorities' inability to continue to fulfil certain functions given them by domestic regulations under EU law, but that sort of change will operate across the country. Lots of people will no longer be bound by EU law, or have EU competences. What is there in the devolution legislation which you say demonstrates that the royal prerogative is no longer available if it is available under the 1972 Act?

  • Well, I will come back to it when we get to it but the answer in short, your Lordship may or may not accept the answer because I appreciate that our case is different if you read the ECA in a particular way --

  • If you read the ECA against Mr Eadie and in favour of Lord Pannick, then your case is largely unnecessary, except insofar as you rely on the Sewel convention.

  • Yes. Yes.

    What I think I would say is that the detail of the Government of Wales Act, and it is not that much detail, it is actually the combinations of sections 108 and 109, so you have the constraint in 108, and I will come to this --

  • I see you are going to come to it, yes.

  • 109 essentially sets out a mechanism for changes to legislative competence, and it is a detailed legislative mechanism which depends upon the scrutiny of either Parliament alone, in the sense of enactment of primary legislation, or the joint collaboration, to use a word we used earlier, between Parliament and the Assembly, where it comes to changes within schedule 7 by means of standing orders.

    So these are, and I don't want to provide too much of a categoric hierarchy but I think one can see if you have a change to the forestry or agricultural provisions of schedule 7, that is no doubt an important change in many instances, but it is not seismic, but what is seismic is taking out the EU component. And yet this is said, it is said to be Parliament's intention in GOWA, the acronym for the Government of Wales Act, that this can be done by the prerogative. We say that is -- and that is a deliberate choice to put that in the legislation, because the point raised against us by the Advocate General, we didn't(?) need to do it. Well, you did it; and why did you do it? Answer: because it was felt to be important for the permanence of the devolution settlement to contain statutory provisions setting out detailed mechanisms for changes of competence.

    So we say that it cannot be other than that Parliament intended in the Government of Wales Act to provide for statutory changes in the event of seismic changes to, radical changes to, legislative competence.

  • So even if we reject Mr Pannick's case on the 1972 Act, you say primary legislation would still be needed because of the Government of Wales Act and similarly Scotland and Northern Ireland.

  • We say, and I think your Lordships and your Ladyship will have this point, even if that were wrong, the Sewel convention then comes in, because in any event, there is a radical change in legislative competence.

  • On another view you could say the Sewel convention point reinforces the point rather than being a separate point.

  • On the other hand, you could say that the Sewel convention argument reinforces the first point rather than being a freestanding point.

  • You could, but of course the Sewel convention is also dealing with the potential for changes to --

  • Exactly, that is why.

  • Absolutely.

    My Lord, that is the second stage of our argument, and now I can deal with the third stage relatively quickly, because that is simply developing the propositions in our case, which I know the court has seen.

    Core proposition one is to be found at paragraph 20 of our case. There are going to be -- there is a dispensation of laws in the Government of Wales Act, and we set out, first of all, the historical support in the books for the dispensing principle. I don't think I even need to say that because it is uncontroversial, but your Lordships will find that and your Ladyship will find that, between paragraphs 23 to 29 of our case.

    I did want to highlight, simply because of certain things that were said yesterday, the Bill of Rights, which absolutely enshrines into our constitution, the prohibition against dispensing with laws, so it is very -- if one can be very fundamental, it is fundamental to our constitution, this principle; and another point that perhaps needs to be highlighted, Lord Sumption has mentioned this in the course of questions to Mr Eadie, but I am not sure it has been focused on particularly, the hearing before the divisional court was rights, rights and rights, and we accept that rights of course are very very important.

    But the dispensing principle goes beyond rights, and not only does it go beyond rights, it actually goes beyond things like new constitutional orders. You don't have to have a constitutional order or a human right for the dispensing principle to remain the axiom of our constitution.

    So we say that the Government has accepted the fundamental nature of the dispensing principle but it simply misunderstands it and misapplies it. Indeed, what Mr Eadie said, I think at some stage, it will be in the transcript, is there was a genuine dispute in this case, and in characteristic fairness he said there is a constitutional issue here, no doubt the dispensing principle exists but we have just misapplied it; and he then says, he then prays in aid for that submission the De Keyser line of cases and for the reasons I have suggested, they are wrong.

    As to dispensing, paragraph 31 of our case makes it clear which statutory provisions we are suggesting have been dispensed with in the Government of Wales Act and I don't think it is necessary to go through the details, save to say that 108 and 109 are of major importance, and we cite both 108, I think, and 109, so 108 is at paragraph 32 of our case.

  • 109, I think is at paragraph 36 of our case.

  • What will be of some interest no doubt to this court when one looks at the prohibition at 108(6)(c):

    "A provision which falls within subsection (4) is outside the Assembly's legislative competence if it is incompatible with the convention rights or with EU law."

    Those are important -- that is an important provision because it is to be contrasted with other international provisions, as we shall see in a moment, which are not embedded in the statute in the same way, and which the Secretary of State has power to intervene with, but they are not written into the fabric of the devolution statutory regime.

    My Lords and my Lady, the detail or the grit, if you like, of section 108 is dealing also with other aspects of legislative competence. So the structure is this: in Wales there is not this reserved powers model, it is a conferred powers model; so the Assembly gets the powers it has from what goes into, what comes out of, what is transferred across, within schedule 7, and section 108(c), however, is a red line constraint. So we move then from that to --

  • The definition of EU law is lifted really from section 2(1) of the 1972 Act, isn't it.

  • So in a sense this argument, you can say, for better or for worse, is linked very closely to the main argument, if I can call it that, based on the 1972 Act?

  • It is, and I say two things to that. First of all, the fact that it is linked closely takes us back to the point I made earlier, which was described as a bold submission, but it is of a piece. Why would Parliament in the Government of Wales Act put in a permanent feature of the Assembly's competence when it was unnecessary to do so, unless it thought that what was put into the 1972 Act was permanent membership of the EU, save unless removed by statute.

  • The other view would be that if Mr Eadie is right on the 1972 Act, then that carries into, because they have used the same definition, the Government of Wales Act, and if you rely on it to help you -- if it unfortunately doesn't help you because we are with Mr Eadie, then that has the same consequence on the Government of Wales Act; namely the argument does not help you here either.

  • I fully understand the point against me, but can we then move to what we say in paragraph 33 of our case, so section 108(6)(c) places a clear and unqualified restriction on the competence of the Welsh Assembly, but it may not legislate contrary to EU or convention rights, we would say. We place emphasis on the fact that there is no equivalent restriction on legislative competence for types of international obligations, other than those found in section 108(6)(a). Other types of international obligation are separately addressed, but only as set out in section 114(1)(d).

    That provision does give, as I foreshadowed earlier, the Secretary of State the power to veto an Assembly act which is incompatible with any international obligation.

    So if all we are talking about in the 1972 Act are international obligations, why are they being treated differently as far as EU law is concerned and convention rights are concerned? As I say, your Lordship points correctly to the definition of EU law, I fully accept that, but what we do say is that when you get to 109, we do find ourselves in an interesting quandary, if one is trying to say: doesn't it all mean the narrow conduit pipe in section 2, because if you look, and it is in our case at 36 and I don't need to take you to the section --

  • Yes, it is, thank you.

  • -- but there it is, you can make an order in council amending schedule 7, and if you do, one can see that in subsection (4) of section 109, one makes no recommendation to Her Majesty in council unless a draft of the statutory instrument containing the order in council has been laid before and approved by a resolution of each House of Parliament and, subject to an immaterial exception, where it has been laid before and approved by a resolution of the Assembly.

    So as I said earlier, this is a very detailed machinery for the amendment of legislative competence and then we have the Sewel convention which your Lordship was -- referred to as possibly reinforcing this argument but the important point is this. If as a matter of statutory interpretation the Government are right, as I said earlier, your Lordships have the point, the most important changes of all to legislative competence can be done by a simple signing of a piece of paper by a Government minister, under some supposed prerogative or asserted prerogative. And we say that simply misses the point.

    We also point to the -- lest it be said against us, all you are having surely is removal of a constraint, we refer to the explanatory note, I don't know if the court has the explanatory note to section 109.

  • Is that the relevant part summarised in --

  • You have a yellow tag on your desk and we have cited it.

  • You have. Are there any other relevant parts apart from the one you quote?

  • No, it is -- "enhanced" is the word that matters there, my Lord.

  • Thank you. Thank you for supplying it.

  • We make similar points about the Welsh ministers and your Lordships will have those and your Ladyship will have that point. We make other points about the huge lost swathes of EU law, and Lady Hale put a question about that the other day. We mentioned the interpretation point in section 154, but I fully accept the connection that your Lordships draw between section 2 and GOWA.

    What we say is it is not unnecessary in a (Inaudible) connection for the reasons I have given, but also say that GOWA may throw some light on section 2. But apart from that and it should not be forgotten, my Lord, Lord Pannick, has put forward compelling arguments in our respectful submission, Ms Mountfield will do the same no doubt, as to why section 2 does not mean what the Government says it means. Certainly we say you should not construe section 2 alone; you should not forget the Sewel convention, you should not forget devolution when you are approaching that question -- what other background is important, in my submission.

    So then I just wanted, having gone through that and pointed out the dispensing provisions that we say -- sorry, the provisions of the Government of Wales Act that we say are dispensed with, I wanted to come back to the Government's objections and, essentially, the objection in the devolution submission is twofold, and the key point I think I wanted to draw, do your Lordships have the devolution submissions of the Government?

    They are -- I don't know if your Lordships have them. If you have -- you do? What I wanted to point to, my Lord, was paragraph 4(3) and 5, where there is a reference at paragraph 4(3) to the Government of Wales Act. What is said, I think, and it is the point made against the Scottish devolution arguments as well --

  • Which paragraph, sorry, I beg your pardon.

  • My note says 4(3) and 5. The reference at 4(3) is to the exclusion of foreign affairs from the powers conferred on the Welsh Assembly. So that is the first argument put against us. That is the first argument put against us, because I think it is said: well, you have not got anything relating to devolved matters that affects your competence, or something of that sort.

    The simple point here is, and it is the same argument I imagine that the learned Lord Advocate would put, the fact that you have something reserved outside the specific devolved competences is simply a reference to the method to achieve an outcome. What actually matters is the outcome, and the outcome where you exercise a foreign affairs jurisdiction may well be to affect areas of competence of the Welsh Assembly. So that is why the words, "regarding devolved matters", can only sensibly mean, quite apart from the practices of the Sewel convention, one thing: they mean, does an action taken affect the legislative competence of the Welsh Assembly.

    But then the devolution submissions go on to say, and I think this is at 5, what is fatal to our case, they say, is that the legislation, far from occupying the field, declines to enter the field occupied by Parliament at all, and demonstrates that nothing in the devolution legislation abrogates the prerogative.

    Well, this is the confusion that I mentioned earlier, and we are not talking about an abrogation of the prerogative. So this is reliance which confuses two quite separate principles. The first principle is that Parliament may abolish parts of the prerogative, and that is known as abeyance. The second principle, however, is that if you have got an existing head of prerogative, you cannot -- if you have not got an existing head of prerogative, it follows that there is nothing to abrogate. So the confusion of principle that runs through Mr Eadie's arguments, run through the devolution submission responses as well.

    If you look just very briefly, one sees evidence of this confusion if your Lordships and your Ladyship look at paragraph 57, striking example in the Government's case, the Government's case now, not the devolution submissions, and I will read from it, if I may.

  • Of the original case.

  • The original case, thank you.

  • Sorry if I didn't make that clear. The original case.

  • "The principle properly stated is that prerogative powers can be used to change domestic laws and to deprive individuals of rights in the UK if the powers are part of the prerogative and if the change is not inconsistent with the requirements of an act of Parliament which occupies the field in question."

    That has to be wrong. It is a major part of the Government's case. So you can deprive individuals of rights, you have a power to do it, and that is issue 12 in the statement of facts and issues; you can do it without any authority from Parliament, provided that it is not inconsistent with the requirements of an act which occupies the field in question.

  • That is surely -- why is that incorrect?

  • Because it goes right back to the De Keyser line of cases.

  • So really it is correct if you take the double taxation treaties, isn't it?

  • With double taxation treaties --

  • You can have a piece of legislation which allows the use of the prerogative, or contemplates it, perhaps, in a way which will switch on or off domestic rights or vary them.

  • It is all a matter of construction.

  • I think this distinction has been referred to. If one has an Act of Parliament which contains within it the possibility of expansion or contraction, undoubtedly the prerogative may have effects. So it may have effects on law, but what it cannot do in my respectful submission is dispense with the law itself.

  • It may be you are taking issue with the words "change domestic law". In that situation the prerogative is not -- it is in accordance with domestic law.

  • All I am saying, my Lord, is that if -- we are looking at a case in front of the Supreme Court. To put a proposition like that when we have the dispensing principle is plainly in my submission not correct. But it gets worse than that, because pages 35 to 43 of the Government's case are entirely taken up -- if there is any doubt that Mr Eadie's raft is the De Keyser principle, it fades away when one sees the heading, "The application of De Keyser's principles", pages 35 to 43.

    This case, at least our case on the dispensing principle has nothing to do with the De Keyser line of cases. And we can see then that all the cases the Government puts against us, paragraphs 40, 45 and 55(b) of its case, 56 of its case, have nothing to do with the dispensing principle.

    So one goes, for example, to paragraph 40 of the Government's case; it says the exercise of the prerogative can undoubtedly have effects on "the content of domestic law and the extent of individual rights and obligations which have effect in domestic law".

    Whether that is right or wrong, none of the cases in paragraph 40(a) to (d) are examples of the prerogative being used to dispense with or even amend a statute.

  • We are now really trespassing on points that have already been made, aren't we?

  • My Lord, I will not do that. Can I give you paragraphs that we object to and we say have nothing to do with the dispensing principle: paragraph 40, paragraph 45, paragraph 55(b) and paragraph 56. The point being that we ask ourselves, if my learned friend is in error in relying on these cases, what other cases is he putting before you in relation to the dispensing principle?

    The only other point I think I want to make before I come to Sewel is the point I made or foreshadowed earlier, which is, we respectfully submit, that it is not a correct approach to say: well, all we need to do is look at section 2, and if that falls away, so does everything else. I made that point but I just want to, as it were, emphasise it.

  • Can I now turn to Sewel and as far as the Sewel convention is concerned, I think that I have already foreshadowed that the importance of the Sewel convention is not, in our submission, its legal enforceability, but that it represents a dialogue between Parliament and the devolved legislatures.

    Now, that dialogue is important for at least two reasons. The first reason is that it is a dialogue between legislatures, and I don't need to emphasise, but I think I ought to, to this court, that the degree of autonomy or sovereignty of a devolved legislature is a sensitive area and it is a growing area for some of the devolved legislatures. There has been case law in the Supreme Court, and perhaps notably, the Axa case.

    There is undoubtedly an emerging sovereignty. It is not the same, we know, as Westminster sovereignty, but it is a growing sovereignty of the devolved legislatures, and it is an important area.

    The second point is that the Sewel convention in its structure envisages -- it doesn't matter what the word ordinarily or normally means at the moment for this purpose -- a legislative dialogue between two legislatures of different competences, but nonetheless of legislative competence. It, therefore, third point, requires the Westminster Parliament to consider whether it is going to legislate without the consent of the devolved legislature in question.

    Now, the fourth point therefore is this. The evaluative decision as to whether to legislate or not is Westminster. But it is not the prerogative. So if the prerogative can be used to short-circuit this dialogue, it is in our submission to ignore the development, the devolution development, the modern dynamic devolution development on which our constitution is materially predicated now that we have devolution in very strong form.

    This, of course, is not an argument on legislative interpretation, nor is it an argument on the legal enforceability of the Sewel convention. It is an argument on the common law approach to the prerogative.

    Nor, indeed, as I think I said earlier, does Sewel necessarily stand in isolation when one is building up a common law anatomisation of the Sewel convention. For example, Ms Mountfield, I know, has a historical analysis, and it is going to be directed to the fact that in context, the use of the prerogative has never been used in this kind of way. That is a separate argument, and not one that I intrude on.

    But when you look at all the sources of information, the common law attaches to itself to analyse the legal scope of a prerogative power, Sewel is very important in that approach, as is history, as to some extent are the commentators.

    If I can take your Lordships very briefly, if I can find it in my own authorities, it is the Agricultural Sector (Wales) Bill case, 2014, it is in the authorities at volume 20. And I wanted to -- it is tab 246, electronic page 6837.

  • I wanted to take the court particularly to paragraph 42. What one sees there is a statement by the Supreme Court, an outline of the history of devolution in Wales, and the three phases, but what I wanted to focus on, or invite your Lordships and your Ladyship to focus on, was paragraph 42.

  • "In our view, each of the successive phases of Welsh devolution", so this is the third phase:

    "... significantly increased the legislative competence of the Assembly. The distinction is most marked between the second and third phases."

    So when I earlier spoke of the trajectory of devolution, this is the kind of thing, this is the kind of incremental process I had in mind. So that means, in our submission, that the constitutional context engaged by devolution is extremely important, an extremely important component element in determining the legal limits of the prerogative. The importance of constitutional statutes in this context has been stressed, and in our respectful submission, the devolution machinery reflects the passing of constitutional statutes on any view.

    So when it is said by the Advocate General as it appears to be, see paragraph 24 of the devolution submissions, that we concede that the Sewel convention is, and I quote from his case, "legally irrelevant", that is a complete misrepresentation of what we do say. We have never said that. It is legally highly relevant.

    Of course, the importance of the convention is not in terms of what does it mean in its precision, can it be enforced in any particular case? What it does mean, however, is that it reflects a practice, and it reflects a growing practice.

    The practice we set out in our case, so at paragraph 78, the court will have seen our reference to the standing order 29, there has to be a legislative consent memorandum in relation to any relevant bill.

    Then at paragraph 79 we have the memorandum of understanding.

    Then of course, as I have, I think, mentioned earlier, we get in the future to a Government of Wales bill, if it becomes an act, will have the same provision as is currently in section 28(8) of the Scotland Act.

    So we then get to what actually happens, what the Government actually says the practice is. This is all we rely on, this is the point. If one goes to paragraph 86 of our case, DGN, devolution guidance note 17 -- I said 86, it should be 85. If I just read these words, again, it is in our case --

  • "The UK Government and the Welsh Government have agreed ..."

    So the UK Government and the Welsh Government have agreed.

  • "... that the Welsh minister should seek the consent of the Assembly ... such provisions and in context it clearly means modifying the Assembly's legislative competence are included in bills."

    Then we can see the standing order which implements the next stage. It is true that the Government -- it just repeats the practice that your Lordships have heard. The Government will not normally ask Parliament to legislate the matters -- without the consent of the Assembly. Then we get the practice, and we give an example in the footnote in our case, dealing with the what actually happens in practice.

    What does happen is that the clerk to the Assembly sends the LCM laid by the Welsh Government to the clerk of the House of Commons, communicating the result of the vote.

    The point from all this is not the detail of the practice, but the fact that there is a practice, and the fact that the practice in question is one between legislatures and one which involves communication between the devolved legislature and the Westminster Parliament.

    At the end of the day, we are not asking your Lordships and your Ladyship to construe a statute, what we are asking in this argument is for this court, no doubt in combination with other techniques of development of the common law, to evaluate in a case such as the present, of enormous constitutional importance, the weight to be given to the Sewel convention, no doubt other aspects of the common law, in deciding whether the prerogative in this case, whatever the scope of the dispensing principle, can be used to drive through constitutional change of a seismic nature which the prerogative, as far as I am aware, has never carried through before, certainly since 1688.

    So I hope I don't need to go to the Jonathan Cape case, your Lordships know what we say about it, and your Ladyship; I am not going to go through it. The point is the point I have made. But the critical thing, as I said earlier, is that the conventions are, with an uncodified constitution -- we are one of only three countries in the world, I think, to have an uncodified constitution.

  • To that we must add the Crown dependencies.

  • We must, I agree.

  • They don't have written constitutions either but they are independent countries.

  • We drafted constitutions for the world after about 1787, and it is only in the 19th century when you get to the Hansard debates that you start debating the virtues of an uncodified constitution.

    So where do we go to from all this?

    Well, concluding the submissions I make, and I may just finish early with luck, there may be a temptation with the mountains of legal authorities with which this court has been confronted, to think that the issues involved in these appeals are complicated. We suggest they are not.

    The dispensing principle is one of the most fundamental constitutional principles that we have. Its existence is not in dispute. The case law on it is clear. The Government's confusion about the effect of that case law does not in any way obscure the clarity of the principle.

    As to the Sewel convention, its effect is equally clear, once it is accepted as we submit it should be that the common law as to the scope of prerogative power has to be applied to our modern and evolving constitutional arrangements. Devolution is at the very core of those evolving constitutional arrangements, and also at the core is the developing notion that an unwritten constitution does not mean the lack of a constitution.

    The development of the idea of constitutional statute applies full force to the various statutes giving effect to the devolution settlement in Great Britain since 1997. With that idea comes with the common law corollary that one cannot have implied repeal of a constitutional statute.

    Yet in essence, the Government's case as it applies to Wales is that the framework of devolution in Wales may be, by the prerogative, stripped back and radically altered without any statute at all, in disregard of processes designed to ensure the stability of devolution, simply in order to give effect to the popular will expressed in an advisory referendum. That is, we say, not the reflection of a modern constitution; it is a reversal to a wider exercise of prerogative power and has existed for several hundred years.

    My Lords and my Lady, I am going to finish 10 minutes early, and in doing so, unless the court has further questions, I have been asked, a request that I only too happily assent to, to devolve my extra time to Ms Mountfield.

  • I am not sure it is yours to give.

  • Yes, I don't think I have the competence, my Lord. Can I ask for a schedule 7 addition.

    My Lord, those are my submissions.

  • Thank you very much, Mr Gordon. Ms Mountfield, I think the fair course might be to let you have five of Mr Gordon's minutes and for Mr Gill to have five minutes also.

  • Yes, that does seem fair.

  • I don't think I need Mr Gordon's consent for that, but if I do I am sure he will give it.