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

It is volume 20, my Lord, tab 246. This was the case of the competence of the Welsh Assembly in respect to certain legislation.

At paragraph 6 which begins at MS 6829, his Lordship observed the description of the 2006 Act as an act of great constitutional significance:

"It cannot be taken in itself to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute."

He refers there to the case of Attorney General v National Assembly for Wales Commission in support of that proposition.

So again, it is not that there is any particular or exceptional tenet of interpretation to be employed simply because we are addressing the matter of this particular form of legislation. Now, again, in the context of the Northern Ireland Act 1998, it has been asserted that the Northern Ireland Act is a constitutional statute, and that as a consequence of that, it enjoys some particular enhanced status.

The authority usually cited in support of that proposition is, of course, the speech of Lord Bingham in the case of Robinson, and I think your Lordships will find that in core volume 4, tab 81, MS 3272, with Lord Bingham's observation at 3280.

He didn't actually describe the 1998 Act as a constitutional statute, but he did describe the Act as in effect a constitution, and stated that it should, consistently with the language used, be interpreted generously and purposefully, bearing in mind the value which the constitutional provisions are intended to embody. I don't believe anyone would take exception to that in the context of all those acts which are regarded as of constitutional significance.

It is also worthwhile noting the observations of Lord Hoffmann in that case at 3284, where he made the point that the 1998 Act was framed by the Belfast agreement, and that was of course an extremely important, and remains an extremely important political agreement, which also incorporated an element of international treaty in the form of the British-Irish agreement that was appended to the Belfast agreement, sometimes referred to as the Good Friday agreement.

I would have no difficulty with that approach to the interpretation of any of the devolution legislation, but can I move on to the conduct of foreign relations and the context of that legislation. My Lords, the conduct of foreign relations is a matter expressly reserved in the devolution legislation, such that the devolved legislatures have no competence in that matter. The Scotland Act section 30(1) gives effect to schedule 5 which defines reserved matters. As a point of reference, that is at MS 4361.

Those reserved matters include, amongst others, and I quote:

"International relations, including relations with territories outside the United Kingdom, the European Union and their institutions and other international organisations."

The Northern Ireland Act is in materially identical terms with the legislative competence of the assembly being restricted in terms of section 6, where there is a reference to what are termed "accepted matters".

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