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

My Lord, it is, by the standards of the Scottish Parliament, quite wordy.

My Lords, moving from sovereignty, if I may briefly touch upon the question of the prerogative, the equivalent in the law of Scotland and England concerning the control and exercise of prerogative powers was specifically accepted by the House of Lords in the case of Burmah Oil v Lord Advocate which has already been referred to. The case can be found in volume A4, tab 34, or at MS 1313.

I briefly quote from Lord Reid at MS 1336, where he observed that it does not appear that as regards the issues on the appeal, there is any material difference between the law of Scotland and the law of England, and indeed the law of Burma. He went on at 1345 to observe that:

"When the prerogative took shape, it was that part of sovereignty left in the hands of the King by the true sovereign, the King and Parliament."

These points were also underlined by Lord Hodson and Lord Upjohn, and so there appears to be clear authority, legal authority for the proposition that there is no material distinction between the exercise of the foreign affairs prerogative as between Scotland and England.

I would just finally observe in passing a point made by Lord Keith in the case of Lord Advocate v Dumbarton District Council in 1989, a case with which my Lord Hodge may be familiar as he appeared for the respondent, and the late Lord Rodger appeared for the Lord Advocate.

Context is everything, I appreciate, but the court had to address the matter of how the Crown prerogative survived in the context of statutory provision, both north and south of the border. The case is at A21, tab 265, and at MS 7384. Because this is a short quotation, I will not take your Lordships to the case, but Lord Keith, after a very lengthy consideration of historical and minute detail on the development of the law, said this:

"In my opinion the law has developed to a point where it is not helpful to refer to writings of greater or less antiquity which discuss the prerogatives of the Crown."

It would appear in light of that that one can take the position as having been settled in the case of Burmah Oil. Some later writings are referred to by the Lord Advocate in his case. I would simply notice this, that those writings pertaining to the constitutional law of Scotland that we have make it perfectly clear that the foreign affairs prerogative was considered to be operative under Scots law, very much in the same way as it operates under the law of England.

I would simply mention these references for your Lordships, first of all Professor Mitchell on constitutional law, it is at volume A37, tab 504, that is the supplementary MS at 908; Professor Tomkins in volume A37 at tab 507; and also an interesting article published by WJ Wolffe, now the Lord Advocate, which is to be found in volume A31 at tab 420.

My Lords, can I move on from questions concerning the sovereignty and prerogative, as it operates in Scots law, to consider the devolution legislation. My Lords, there is no dispute that the devolution statutes comprise very significant pieces of legislation. Nothing in the issue of Article 50 or its notification or indeed withdrawal from the EU altogether alters the existence of the devolved legislatures, or the essential structure and architecture of the devolution settlements.

Much emphasis is laid by the various intervening parties on the status of the devolution legislation as constitutional statutes, and I quite accept that they are to be regarded as constitutional statutes, just as the Referendum Act of 2015 should be so regarded, as Lord Dyson has already observed in Shindler.

I would make one reference to the Inner House decision, that is the Scottish Court of Appeal decision in Imperial Tobacco v Lord Advocate which is at volume A5, tab 41, MS 1592, and in particular to the observations of my Lord Reed in that case where he was invited to take a particular view of the interpretation of the Scotland Act or of any act enacted by the Scottish Parliament on the basis that they had been democratically elected. The passage, I think, is at MS 1619.

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