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

  • Lord Advocate.

  • Thank you, my Lord. My Lady, my Lords, before I start, my learned friend Lord Pannick has asked me to mention that the case of Matadeen to which you referred yesterday is now available to the court.

  • Thank you very much.

  • What I propose to do with the court's permission is to seek to summarise my position in relation to the matter I was addressing at the close yesterday and then to make some short submissions on some particular points that have arisen.

    If the court could have before it again section 28 of the Scotland Act at MS 4359, volume 12, tab 124.

    I am going to articulate a set of propositions.

  • First of all I say that because this is a statutory provision, any question as to its scope and legal effect is in principle justiciable. The question of what legal effect and what meaning to be given to the different parts of in particular section 28(8) is a matter for the court. To say that the subsection is justiciable does not mean that Parliament intended that the court would decide whether a particular situation is normal. The use of the word "normally" in the context of section 28(7) indicates that there are some situations in which the United Kingdom Parliament will legislate with regard to devolved matters without the consent of the Scottish Parliament. I referred yesterday to the background principles, Article 9 of the Bill of Rights and the Pickin rule.

    But that is not an issue that the court needs to address in this case. The question that arises at this stage is whether or not the convention applies at all; namely whether or not a bill to withdraw the United Kingdom from the European Union falls within the scope of the convention. That depends on the meaning and effect to be attached to the phrase "with regard to devolved matters".

    Although that is a phrase which is not replicated elsewhere in the Scotland Act, it is a phrase of a character which is capable of resolution by a court. So there is nothing inherent in the phrase itself which makes it unsuitable for adjudication.

    I say that if there is a dispute about whether legislation of a particular kind is or is not legislation with regard to devolved matters, it is constitutionally permissible for the court to resolve that dispute.

    In doing that, the court would be saying no more and no less than that the convention is engaged; and that the question of whether legislative consent is required is a constitutionally relevant one. That is what the court, this court, would be saying if it were to indicate that the legislative consent convention is part of the United Kingdom's constitutional requirements for a decision to withdraw from the European Union.

    If it is correct, as I submit, that a bill to make that determination would engage the convention, then the constitution passes to the political actors, to the United Kingdom Parliament and indeed no doubt also the Scottish Parliament, to address whether or not this is a case in which exceptionally the United Kingdom would or would not legislate without the consent of the Scottish Parliament.

    Or if that consent were not to be given, and one should not prejudge any of these things, or if that consent were not to be given, whether or not it would be for the United Kingdom Parliament to determine whether or not to legislate without -- in the face of that refusal of consent. There would be no legal sanction should the United Kingdom Parliament choose to do that.

    I have set out in my case in detail what I say is the practice in relation to the scope and application of the legislative consent convention. It is perhaps worth making the point that it is a routine part of the way that matters are addressed between the United Kingdom and Scottish governments between -- and it -- between the two parliaments.

    I say that looking to that practice, a bill which determined to withdraw the United Kingdom from the European Union would engage the convention, because of the effects that it would have with regard to devolved matters.

    In these circumstances, and this comes to the main point in the appeal, in these circumstances it would be surprising if the same result could be achieved by an unilateral action of the Crown under the prerogative. Such action would not be legislation and therefore would not trigger the convention. The result, if the prerogative could be so exercised, would be to elide the need, I say the need for the relevant constitutional actors, those actors who have power to change the law of Scotland, namely the Scottish Parliament and the United Kingdom Parliament, even to address whether the Scottish Parliament's consent should be sought and obtained. I say that if that were the law, and I say it is not the law for other reasons, then that would bypass an important constitutional requirement of the United Kingdom.

    Fundamentally I say this case is about who has the power to change the law of the land. In Scotland there are three legislatures, there is the United Kingdom Parliament, there is the European legislature, there is the Scottish Parliament; and as between the United Kingdom Parliament and the Scottish Parliament, the convention -- convention constrains the United Kingdom Parliament in the exercise of its legal powers in order to respect the authority which the Scottish Parliament has.

  • Can you point to a case, Lord Advocate, where the courts have ever determined the preconditions, the existence or not of the preconditions to exercise of -- or application of a convention, in circumstances where actual exercise is, you accept, entirely a political matter, not reviewable? It is a pretty odd exercise, isn't it?

  • I say not, my Lord. I say it is the court adjudicating on that part of the section which is eminently suitable for adjudication by the court.

  • I can see that as a question -- if it led to something, that is a justiciable question, but here you are accepting it doesn't lead to anything, and there must be presumably many constitutional conventions which depend upon the existence of certain situations. You say that the court can intervene in any of them and determine whether the situation exists and then hand over to the politicians?

  • As I understood it, Lord Advocate, and if I have misunderstood I would like to be reassured, you are saying that what the court can interpret are the words, "with regard to devolved matters".

  • We cannot say anything about whether this is a normal situation or not.

  • That is for the political actors.

  • Indeed. It is the only issue that arises at this stage; after all I accept we don't have a bill, I am proceeding on a hypothesis. But can I say it is part of the current constitutional context within which questions as to whether the Crown can change the law of the land by the prerogative, or indeed whether resolutions of either or both Houses of Parliament can be relevant to the legal question the court has to address, fall to be considered, because part of what the legislative consent convention does is to ensure that where it is properly engaged, the question is relevantly asked: does the devolved legislature agree or not agree with the effects of this, with regard to devolved matters? That is one of the reasons why I say that ultimately what is required here is an act of Parliament to make the decision under Article 50.

  • Do you also say that "with regard to" means something different from "relate to"?

  • It is certainly a different phrase, my Lady, and I did make the point yesterday that this phrase doesn't use the language used elsewhere in the Act; it points back to the language used in the -- originally in the memorandum of understanding, and which I say in turn is explicated by the practice which I have set out in my --

  • You have to say it means something different from "relate to", I think, don't you? Because this court has given "relate to" -- when considering whether the Scottish Parliament has acted within its powers, it has given "relate to" a very specific meaning. You have to say it means something different.

  • Indeed, and I have made the submission that the mere fact, and it is demonstrated by the examples I gave yesterday, that a bill relates to a reserved matter does not necessarily mean that the legislative consent convention is not engaged. That is seen in the practice that has been followed very notably in the two Scotland Acts, as recognised in the explanatory notes that I took the court to yesterday. It is seen also routinely when the United Kingdom Parliament legislates in an entirely reserved field, but gives powers in that regard to the Scottish Government which is not by any means an unusual circumstance; again, routinely legislative consent is sought and if granted, then the Act proceeds.

  • If we accept your submissions, it follows that if notification under Article 50 requires legislation, then on your submissions, if that legislation is, with regard to devolved matters, then the convention -- then it falls within the scope of the convention.

  • Yes.

    If on the other hand we accept that notification does not require legislation, then plainly the convention could not apply. It rather sounds as though the practical significance of this submission depends on the view we take on the primary issue between the appellants and the first and second respondents.

  • It does, my Lord. Although, for the reasons I have sought to articulate, I say that if one is testing that constitutional issue in light of our current constitutional circumstances, then it is the existence of the devolved legislatures, the impact on them, on their competences and on policy areas with which they are concerned, and (Inaudible) of this convention are all part of the current constitutional context for the question -- in which the main question needs to be addressed.

    Can I then make a short submission on the phrase "it is recognised that", which my Lord Hodge asked me about yesterday. In my submission, that is a phrase which again refers one back, it tells us that Parliament is referring to something that already exists. It is a phrase -- we have had a search done -- and it is a phrase -- not a phrase that appears to be very much used. It has been used in the context of two constitutional orders which I am afraid I do not have with me but I will make available to the court, the Gibraltar constitution order and the Virgin Islands constitution order. In the former there is a provision that states:

    "It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist each and all of the following human rights and freedoms, recognised and declared."

    Likewise in the Virgin Islands constitution order, in a similar context, in relation to the enactment of fundamental rights and freedoms, there is a set of provisions that include:

    "Whereas it is recognised that those fundamental rights and freedoms apply subject to respect for the rights and freedoms of others ..."

    And so on, namely, and then they are enumerated. So those are examples of the phrase being used, in a way recognising something which is said already to exist, but which is being brought into a particular legal and constitutional framework.

  • They are declaratory of some legal propositions in both of those cases, whereas the unusual feature of this subsection is that it is declaratory of a political intention.

  • Well, my short submission is that the fact that the provision is declaratory, as indicated by the phrase "it is recognised" is neutral as to the -- or doesn't point to any particular conclusion as to its juridical effect. The juridical effect is -- plainly the status of the rule has changed, it has become part of an act of Parliament.

  • Its juridical effect is going to depend on what it is that has been recognised.

  • Well I don't say it is irrelevant that it is now in an Act of Parliament. To take the example of fundamental rights, there is a nice passage in the case of Higgs, which the court has at MS 2763, where Lord Cooke of Thorndon, speaking of the right not to be subjected to inhuman treatment, said:

    "It is recognised rather than created by international human rights instruments."

    It doesn't mean that it is irrelevant that it is then enacted or brought in with human rights instruments.

    I entirely take my Lord's point that at the end of the day, it will be a matter of construction for the court to decide what the implications are of the change in, what I say is a change in juridical status of the rule.

  • Lord Advocate, you are not disputing that what has been recognised is a convention, and that the court cannot adjudicate on the question of what is normal.

  • I accept all of that, my Lord.

  • Lord Advocate, I think the phrase "it is hereby recognised and declared" is common to a great many Commonwealth independence constitutions. I have just got up the constitution of Trinidad and Tobago, section 4 of which -- with which we are very familiar because we encounter it regularly in another jurisdiction:

    "It is hereby recognised and declared that in Trinidad and Tobago, there have existed and shall continue to exist ... following rights ..."

    So it is very common, recognising an existing state of affairs and in that case giving it legal effect.

  • I entirely take the point, and my Lord Sumption's point, that it begs questions rather than answers them.

  • We ought to let you move on I think.

  • Indeed.

    Yes, if I could just make two short points in response to issues -- sorry, I should make this point, that if I -- I would be making this submission, even if it wasn't for the statutory enactment, so I say it is not critical, and I point the court to the Patriation Reference case from Canada, volume 25, tab 305.

    The approach that I would say of the majority of the court in that case to a question of the justiciability of a convention not dissimilar to the one before this court, did not in my submission depend on any specialty of the Canadian jurisdiction. I draw the court's attention to MS 8846 to 8847 where the Canadian Supreme Court, the majority bites directly on the justiciability question.

    I may say that was a case where the convention was not enshrined in statute. If I am wrong in all of that, and the court were to take the view that the point is not justiciable, then the court would decline to answer the Advocate General for Northern Ireland's second question. The court would say that Mr Justice Maguire was wrong to express a view as to the scope of the convention, and in effect the court would be leaving to other constitutional actors the question of whether or not the constitutional requirements of the United Kingdom include in the present circumstances this convention.

    If I could make two short points in response to issues raised by the Advocate General for Scotland, he made a point that there is no bill before us and ordinarily this is a question which would not be addressed without a bill because the question of whether the convention is engaged or not, may depend critically on the particular provisions of a particular piece of legislation; and it is entirely possible, no doubt, that a bill determining to leave the EU could also contain other provisions which (Inaudible).

    I have sought to test the matter in a way most favourable to the United Kingdom, by assuming the simplest possible bill. He pointed out that there was no legislative consent motion in relation to a string of previous pieces of legislation relating to the EU. I will say it is entirely consistent with the United Kingdom Government's ambulatory theory that changes to the content of EU law were not thought to engage the convention, far less, far less, changes in the institutional procedures of the European Union; and I say that the hypothetical bill withdrawing us from the EU with the significant radical consequences with regard to devolved matters that I alluded to yesterday is quite different in kind. It is really the same point that the court discussed with my learned friend Mr Eadie on Day 1, that we are dealing with something that is not simply a change in scope, it is something which is quite different in kind.

    My Lord, Lord Hodge asked me whether the power given to Parliament in Article 18 of the treaty of European Union was given to Parliament exclusively and I do say, I do say that, exclusively to Parliament and to those authorised by Parliament. Against the background of the claim of right, and the Bill of Rights, it would have been extraordinary if the power to change the laws in use within the Kingdom of Scotland, which is the phrase in the Act of Treaty of Union, had been given to the Crown.

    The question of who had authority, as regards Scots law, was a matter of significance to the framers of the union legislation. I say it is not a matter simply of footnoting to note that the power to change the laws of Scotland were given to Parliament and of course to those whom Parliament has authorised, and not to the Crown.

    I say that is consistent with what I say is the limiting rule of constitutional law, that sets bounds to the use of the prerogative and precludes the United Kingdom Government from asserting the power to make the significant changes, or to make the significant changes to the laws of the land by virtue of the prerogative that they claim in this case.

    Unless there are other matters that I can assist the court with, those are the submissions which I wish to lay before the court.

  • Thank you very much, Lord Advocate. Thank you.

    Mr Gordon.