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

Paragraph 71, my Lord, and he observed that the Scotland Act is not a constitution but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from some of the examples he had been given.

"The Scotland Act can be amended more easily than a constitution, a factor which is relevant since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government's stated policy on legislation concerning devolved matters currently embodied in the memorandum of understanding [which I will come to in a moment] known colloquially as the Sewell Convention, may impose a political restriction upon Parliament's ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act."

I think also an earlier reference at MS 1616 at paragraph 58 where he observed:

"Insofar as this submission invited the court to adopt an approach to the interpretation of acts for the Scottish Parliament which is different from that applicable to other legislation and different from that authorised by section 101 of the Scotland Act, I am unable to accept it."

He goes on about the point made with regard to the democratic legitimacy of the Scottish Parliament, but not as something which impacted upon the approach to the interpretation. So there is no particular or distinct tenet of interpretation to be employed simply because we are dealing with what in that context is a constitutionally important act.

I recollect that Lord Hope said something similar in the Supreme Court case in Imperial Tobacco. I regret that the Supreme Court case has not been incorporated into the bundle, but your Lordships may well be familiar with at that case. Lord Hope made his observations at paragraph 16 of the report.

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