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

Good morning, my Lady, my Lords. In addressing the devolution issues, it is necessary to bear in mind that I am addressing those interveners in the Miller case who have raised points with regard to the devolved legislation, and also responding to the devolution issues that have been put forward in the Agnew and McCord cases for Northern Ireland.

With regard to the latter, I am of course anticipating submissions that are yet to be made, and it may be that on Thursday, I will seek leave to make some short response to any additional points that are made in regard to these matters.

Your Lordships will have the additional written case that has been submitted with regard to devolution issues. In addition I am grateful to my learned friends Dr Tony McGleenan and Paul McLaughlin from the Northern Ireland Bar for producing a written case in respect of the devolution issues from Northern Ireland. I readily adopt that written case as part of my submission in respect of these matters.

In the time available, I am not going to attempt to address each of the issues that are raised in the separate interveners' cases, but what I will attempt to do is to address three themes that seem to percolate through all of these cases. Those are, first of all, sovereignty and the prerogative; secondly, the constitutional status of the devolution legislation, and thirdly, the Sewell convention, and attempts to elevate it into some form of constitutional requirement for the purposes of Article 50.

So taking the first of those, in his written case, at paragraph 30, the Lord Advocate quotes Lord Hope in Jackson v Attorney General on the question of sovereignty. If I can just give references, my Lords, to save time rather than taking your Lordships to and quoting from the particular cases, it is MS 12583, paragraph 30 of his written case.

Building on this reference, he then goes on to say that Lord Cooper's dictum that the principle of unlimited sovereignty of Parliament is a distinctly English principle, which has no counterpart in Scottish constitutional law, quoting of course from Lord President Cooper in MacCormick v Lord Advocate in 1953. That passage from Lord Cooper's judgment is often cited as a possible exception to the question of parliamentary sovereignty, but it has never gained traction in any court of law as far as I am aware.

It is, of course, repeatedly referred to in a political context, and I quote from an essay published in 2013 by my learned friend Mr Aidan O'Neill QC, in the Juridical Review of that year, where he observed:

"Lord Cooper's words, though oft cited by Scottish legal nationalists, have never, in the 60 years or so since they were written, resulted in the courts accepting the validity of any challenge to any provision of an act of the Union or Parliament for its incompatibility with the requirements of the 1707 Union. It may be better, therefore, to regard these remarks as a form of poetic or romantic licence."

My learned friend Mr O'Neill then submits a written case on behalf of one intervener, the Independent Workers Union of Great Britain, which could be described as poetic or romantic licence, and I refer to part three of that case.

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