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

  • Indeed, my Lady and my Lords.

    If I am short, it is not because I wish to appear in any way dismissive of the submissions by my learned friend the Lord Advocate, by my learned friend Mr Gordon, and by my learned friends for the Northern Ireland Bar, Mr Scoffield and Mr Lavery; it is because I stand between you and my learned friend, Mr Eadie.

    My Lords, could I shortly address one or two issues that have been raised with regard to the devolved legislation. First of all, with regard to Northern Ireland, the Government is fully and obviously firmly committed to the Belfast agreement and the institutions that are thereby established. We have sought to explain in detail in our printed case why the trigger of Article 50 and the United Kingdom's exit from the EU will not undermine any of that. We have already responded to the applicant's written arguments in that regard.

    My learned friend Mr Scoffield made quite a lot, as anticipated, of the North South Ministerial Council and implementation bodies, and in particular the special EU programmes body. In order to respond to that, my learned friends, Dr McGleenan and Paul McLaughlin of the Northern Ireland Bar have prepared a short note as I anticipated when I originally addressed the court, and I wonder if your Lordships have a copy of that. I don't propose at this stage to take your Lordships through it in detail.

  • It is perhaps sufficient for me to say that clearly these bodies and in particular the special EU programmes body do not rely directly upon the terms of the Northern Ireland Act 1998 and indeed that particular body continued in existence after 2006 because of the coming into existence of an international agreement of 25 July 2016 between the British and Irish governments.

  • So I commend the note to your Lordships but as I say, I would not propose to go through it in any detail.

  • We will read it, as we will all the written material that has been handed up to us. Thank you.

  • One further point to observe in this context is that, and this applies to all of the devolved legislation, it assumes but does not require membership of the European Union.

    Can I turn briefly to some of the points made by my learned friend Mr Gordon on behalf of the Counsel General for Wales and I would make two short points. If we are correct about the 1972 Act, then it doesn't appear in my submission necessary for us to go to the devolved legislation; if we are wrong about the 1972 Act, then it doesn't appear to me to be necessary for us to go to the devolved legislation.

    On one further point, my Lords, my learned friend --

  • That would be because you have either lost or won, all down the line.

  • Indeed so, and it is reflected in the terms in which the devolved legislation addresses the matter of EU competences.

  • In short you say there is one trench, and if that trench is stormed, there is not a second trench.

  • There is a point that would then arise that the Lord Advocate raised, in relation to the Sewel convention.

  • That is what I am going to come on to, my Lord.

  • And indeed his opposite numbers in Wales and Northern Ireland.

  • That is where I am going. There is one point I was going to make before I come to on the Sewel convention, because that is what I believe I should address at this stage, and that is my learned friend Mr Gordon's suggestion that somehow it was improper for the prerogative to be employed in circumstances where it would elide the application of the Sewel convention with regard to legislation that impacted upon the devolved institutions and the devolved areas of the United Kingdom.

    My Lords, in my respectful submission, that proposition doesn't stand up to very much in the way of scrutiny. Whenever we agree to the making of a further regulation with direct effect, under European law, we do so in exercise of the prerogative and that regulation takes direct effect in all of the devolved areas of the United Kingdom, as well as in England.

    Furthermore, I would just notice that, for example, in regard to the Scotland Act, section 57 expressly provides that in the matter of making regulations under section 2(2) of the European Communities Act 1972, that function is to be available to the ministers of the Crown in relation to any matter, and shall continue to be exercisable by them as regards Scotland for those purposes.

    So there are a number of instances in which either by exercise of the prerogative or the exercise of the power under section 2(2) of the 1972 Act, that changes can be made in the competence of the devolved legislatures, and changes can be made in the law, the rights and the obligations arising in those devolved areas.

    Can I turn then to the Sewel convention and the first point that I would seek to make --

  • Which sections of the Scotland Act were you referring to?

  • So any matters including devolved matters?

  • Presumably there is no other basis on which you could do it, since regardless of the outcome of any consultation or co-legislative procedure, you would still have to give effect to EU law? But does that apply if you are withdrawing in the same way?

  • In my respectful submission, it would apply in the same way, but that goes back to an analysis of the 1972 Act which we have already heard about. I don't want to intrude on the territory of my learned friend Mr Eadie. I am quite happy to do so but ...

  • This is dealt with in practice by consultation, isn't it; the devolved administrations are asked to make representations on the subject --

  • It is interesting that my Lord should put it in that way, because obviously -- my learned friend Mr Gordon mentioned it, there is dialogue between the various administrations, not a convention. This is where I come to an important point about the way in which my learned friend the Lord Advocate seeks to present his case, because he tries to draw together not just issues that might touch upon a convention, but to incorporate within that simple matters of dialogue or practice that have gone on for a number of years with regard to relations between Westminster and the devolved administrations.

    It comes up because of the way in which matters are expressed, in particular in the Lord Advocate's written case. In our printed case, and in the printed case for the Attorney General for Northern Ireland and in the printed case of the Counsel General for Wales, reference is made to the Sewel convention. We can understand what the content of the Sewel convention is. It finds its origins in the statement by Lord Sewel during the passage of the Scotland Act 1998; the same wording appears in the Smith Commission report and the same wording is then to appear and does appear in section 28(8) of the Scotland Act as amended by section 2 of the Scotland Act 2016.

    However, my learned friend the Lord Advocate refers to what he terms the legislative consent convention, and in my respectful submission, there is no such thing. Now, this is not a point of pedantry. What my learned friend the Lord Advocate seeks to do is to subsume within his legislative consent convention those matters that are dealt with, for example, by the memorandum of understanding between the governments, and those matters that are dealt with in the devolved guidance notes, prepared by officials for the relationship and control of the relationship between Westminster and the devolved administrations. So in respect of Scotland it is DGN 10, in respect of Wales it is DGN 17, in respect of Northern Ireland it is DGN 8.

    Now, I would just notice, and this is in the papers, that during the passage of the Scotland Bill 2016, various attempts were made to amend clause 2 in order to incorporate within what was then the Sewel convention as properly understood, references in addition to the contents of DGN 10, DGN 8, DGN 17 in order to expand the convention that was then going to be expressed in statutory forms.

    None of those amendments proceeded, and one of the points made in response to these attempts at amendment was that the practice that was followed between officials of the respective administrations was something that could change from time to time and should not be set in any form of statute. Whereas the convention itself could be and was to be.

    There was a further aspect to that, which was that so far as these considerations were concerned, the standing orders which dealt with what are termed legislative consent memoranda and legislative consent motions were the standing orders of the devolved administrations. They had nothing to do with Parliament at Westminster.

    These were mechanisms that the devolved administrations had developed in order to deal with the application and operation of relationships between the devolved administrations and Westminster.

    And yet, and I invite you to go back to the Lord Advocate's case, because at one point he suggests that his legislative consent convention is the Sewel convention, but I invite you to go back to his written case, where it becomes increasingly apparent that he has brought into that new convention, if I can call it that, a great deal of procedural detail and practice that is actually contained within the DGN, the devolved guidance notes.

    Indeed, in response to a question yesterday from my Lord, Lord Reed, when asked about the language of section 28(8) of the Scotland Act 2016, my learned friend the Lord Advocate answered, and I quote:

    "... it points back to language which appears in the memorandum of understanding and which has been articulated in practice."

    With respect, it does not. It refers directly back to the statement made by Lord Sewel which was repeated in the Smith Commission report and incorporated in section 28(8) of the Scotland Act.

    Once we understand that, we can put in context what is actually meant by the convention and its operation. With regard to the position of Wales and Northern Ireland, of course there is no statutory expression of the Sewel convention, although I notice that my learned friend the Lord Advocate said this morning that even without section 28(8), his position would remain the same.

    I would observe, and reference was made to this in our written case, that if one wants guidance, as regards such a convention, one can look perhaps no further than the Privy Council case of Madzimbamuto that I referred to in my opening submissions to the court, and in particular the observations of Lord Reed with regard to the relevance and application of such a convention.

    Now, I accept that in one sense section 28(8) of the Scotland Act does alter the position of Scotland but not, I would suggest, very much. My learned friend the Lord Advocate says there must be some legal content to the convention, although it is not clear how this could play a legal role. I would respectfully observe that, when my Lord, Lord Hodge raised the point about section 28(8) and its incorporation into statute, he observed that it may have been there to preserve what had been a convention, so that if it was to be intruded upon, it would have to be intruded upon by primary legislation. In other words it was to be seen as fixed.

    That is why it was restricted to the very particular terms of the Sewel convention itself and not extended to embrace practice, practice notes, or dialogue between the respective administrations. Indeed, there are precedents for that. The Ponsonby convention, for example, was finally, after many, many years, incorporated in statutory form, I would infer in order that it could be seen to be fixed and only intruded upon by primary legislation on the part of Parliament.

    Just because it is incorporated in statutory terms and in order to be preserved in present features does not mean the convention is justiciable, and I would emphasise a number of points which underline this.

    First of all, the language of section 28(8) itself, the Sewel convention, is the language of political judgment. I don't seek to expand upon that at this time, and I did make submissions on this point before. Section 28(7) --

  • It is not so much political judgment as political undertaking, is it not?

  • Judgment, my Lord, in my respectful submission; remember, this is a matter for Parliament and Parliament's judgment, in my submission.

  • Does it not convey an undertaking?

  • Not on the face of it, my Lord. It is, as I expressed it before, a self-denying ordinance expressed by a sovereign Parliament, albeit in qualified terms.

  • That is interesting. So it is not giving any undertaking at all as to how Parliament will address the question of whether it should legislate?

  • I would simply express it as a self-denying ordinance expressed in qualified terms, my Lord.

  • Could I ask you also, you say it doesn't reflect the memorandum of understanding; if that is right, what is the significance of it not reflecting the memorandum of understanding?

  • Merely this, my Lord. The memorandum of understanding, like the DGNs 8, 10 and 17, fix the practice that is going to be followed by the respect governments in order to maintain dialogue, in order to maintain communication, and in order to maintain coherence in circumstances where there are two sources of legislation for particular parts of the United Kingdom. But more particularly, and more narrowly, the Sewel convention is an expression of what Parliament will do. It is an expression of its self-denying ordinance.

    One has to bear in mind it follows section 28(7), which reiterates the absolute sovereignty of the Westminster Parliament. It is then followed by the words "but it is recognised", and I simply pose rhetorically the question, recognised by whom? It is recognised by the sovereign Parliament.

    That is not consistent with a justiciable matter.

    But perhaps there is a more significant point to make, and it was one brought out by my Lord, Lord Mance, which is there is on the face of it no possible remedy if the sovereign Parliament does not adhere to the Sewel convention, and it might appear to be an unduly narrow and civilian approach to matters, but if there a right there is a remedy. If there is no remedy, is there a right?

    In my respectful submission, even as you begin to pursue the idea of a remedy, you come up against Article 9 of the Bill of Rights and against the Claim of Right, and one cannot go past that, it is perfectly clear. So in light of this, while Article 50 may refer to constitutional requirements, it is quite impossible to see how the Sewel convention can constitute one of those constitutional requirements.

    At one point my learned friend the Lord Advocate said: well, I will take any proposed bill in its narrowest terms, and I will then test matters by reference to that.

    Well, let us suppose that there is a bill to authorise the giving of notice under Article 50 to the EU. That is not on any view a bill with regard to devolved matters. So applying the Lord Advocate's own test, it is really quite impossible to see how the Sewel convention can be elevated into a constitutional requirement for the purposes of Article 50.

  • Can I clarify one matter, please, Advocate General. In section 28(8), after the introductory words, "it is recognised that", everything that is then said is almost verbatim the words used by Lord Sewel. Is it the Government's position, the UK Government's position, that all of those words, including the words "with regard to devolved matters" are non-justiciable; is that your position?

  • The assumption presumably in a case where Westminster does legislate for a devolved matter is that it is legislating for a matter which would be within the competence of the devolved legislature. On no view, it seemed to me, at the moment, could withdrawal from the EU, however many effects it has on other devolved matters, itself constitute a devolved matter in respect of which there is a parallel right to legislate in both legislatures.

  • Indeed so, my Lord. Indeed.

    Relations with the EU are, of course, expressly reserved from the Scottish Parliament.

  • That seems to me to be the main difficulty about the notion that because withdrawal has knock-on effects on other matters that are devolved, it must be -- entitled to special treatment.

  • I concur on that, my Lord, and it applies in respect of Northern Ireland, albeit the structure is in respect of the accepted matters, the result is the same and it also applies, it would apply in respect of the Government of Wales Act as well. So one arrives at the same conclusion, that this is not a matter for the devolved administrations in that context. I am not seeking to equiparate the wording in section 28(8) with the wording of section 29, and the question of what it relates to.

    In my respectful submission the wording is quite distinct because of the origins of the Sewel convention dictating the terms of section 28(8) of the Scotland Act.

    It underlines that what was introduced was a matter of political judgment and no more than that.

  • You have really got to read (8) with (7), haven't you.

  • When you look at (7), any argument that (8) is legally enforceable amounts to saying that (7) doesn't mean what it says.

  • There is then a question as to whether your Lordships are even required to answer --

  • It could be that (8) is carved out of (7), couldn't it? One reading.

  • But could read "excepted".

  • But except -- exactly.

  • My Lord, if one reads them together, with respect, it is quite apparent, as I indicated before, we are dealing with the absolute sovereignty of the Westminster Parliament --

  • -- also Article 9 of the Bill of Rights and the equivalent.

  • And the expression of a self-denying ordinance that keeps us well away from Article 9 of the Bill of Rights.

  • It is somewhat uncomfortable to find it in a statute at all if you are right.

  • There are occasions where one finds expressed in a statute something that is not justiciable but is declaratory essentially.

  • Yes, slightly odd use of a statute.

  • It is, my Lord, but then it is worthwhile just pausing to notice the origins of section 28(8). The Smith Commission was a political commission between all the political parties in Scotland. Lord Smith produced a report and the Government undertook to implement the recommendations in the report in the Scotland Bill 2016, and it did so virtually line by line. So it was the expression of a political agreement within statutory form, and that is why I would respectfully suggest it is rather unusual in that context.

    Your Lordships actually have various extracts from Hansard concerning the debates on clause 2. I am not going to go to them, I still have memories of them, but it was perfectly apparent why clause 2 was going to be incorporated.

  • Is the key one the one which is actually set out in the footnote in Halsbury, Lord Dunlop, parliamentary under-secretary of state, saying that it is not justiciable and so on, yes.

  • It was said on a number of occasions, my Lord.

  • If I remember correctly, the Government in fact undertook to implement the recommendations before the recommendations had been made, with the consequence that it was committed to implementing even a purely political recommendation if such a recommendation were made.

  • Absolutely, and one of the points made during the course of the Scotland Bill 2016 was that we were attempting to put into statutory form material that had not been prepared by lawyers, but politicians. That posed a challenge, not only in respect of clause 2, but in respect of certain other aspects of the 2016 bill.

    My Lords --

  • I think we should move on, it is my fault, I started it.

  • Indeed and I am conscious of time, so I am just going to sum up in this way, my Lords, that it is not necessary in my submission for the courts to answer the second devolution issue that has been brought from Northern Ireland. In my respectful submission the court may be entitled to hold that what the Lord Advocate describes as the legislative consent convention is not a constitutional requirement in terms of Article 50.

    Unless I can assist the court further, I would rest my submissions there. I am obliged, my Lords.

  • Thank you, Advocate General, thank you.

    Mr Eadie.