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

Precisely so.

I accept, my Lord, that the devolved legislation can act as the ECA does, as a conduit, whereby rights and obligations that exist in EU law, or exist in EC law, can flow into Scots law, just as they flow into English law, and indeed flow out again, because one has to remember that the conduit created by section 2(1) flows in two directions; it not only brings in rights and obligations but it takes them out again according to what is done at the EU level, in exercise of the foreign affairs prerogative, to determine regulations and directives under EU law.

I should just add, my Lord, that so far as Wales is concerned, the definition that I have just alluded to at section 126 of the Scotland Act appears essentially in the same form at section 158 of the Government of Wales Act, and materially equivalent wording is adopted by section 98 of the Northern Ireland Act, albeit for some reason the words "from time to time", which we know appear in section 2(1), do not appear in section 98; but I don't suppose anyone is going to argue that the intention was to freeze EU laws at 1998 for the purposes of Northern Ireland.

My Lord, in these circumstances, it doesn't appear that the continued references to EU law in the devolved legislation really take the interested parties' case anywhere. They also attempt to make something of the fact that there is a restriction on the competence of the devolved legislatures to legislate contrary to EU law, and there are, of course, specific provisions for that in the Scotland Act, the Government of Wales Act and the Northern Ireland Act.

I would just observe, my Lord, that even if they were not there, that prohibition would exist in any event because of the status of EU law. It would not be possible for the Scottish Parliament or the Scottish Government to proceed contrary to EU law. So those are there as a point of emphasis and in order to ensure that the exercise of these devolved powers does not conflict with the UK's legal obligations as set at the level of the EU.

Certainly these restrictions say nothing about the exercise of the prerogative in foreign affairs. As I say, they are strictly unnecessary.

In addition to the foregoing, each of the interveners appears to argue that withdrawal from the EU will somehow have an impact on domestic law, and they point to a range of EU secondary legislation that has effect in Scots law or in Wales or in the law of Northern Ireland, but again with respect, what we are dealing with is the impact of the United Kingdom's withdrawal from the EU. This secondary legislation may go at that time, but it may well go even if we don't withdraw. It is open to the United Kingdom Government in the exercise of the prerogative to agree to regulations that have direct effect, to agree to directives under EU law, which will have the effect of revoking existing domestic law rights and obligations which flow from or through the conduit of section 2(1), or the conduit of the devolved legislation.

So again, there is simply nothing in this point.

If I could turn for a moment to the Agnew case, the Agnew printed case presents three arguments in respect of the Northern Ireland Act, and these begin at paragraph 80 of their case. If I can just summarise them very briefly, the first seems to be that Article 50 notification would deprive Northern Ireland's citizens of rights granted by the Northern Ireland Act 1998. Strictly speaking, what it would deprive them of are rights that would flow into Northern Ireland by virtue of the conduit which allows for EU law rights to arise.

The second argument advanced in Agnew is that Article 50 notification would alter the distribution of powers between the Northern Ireland assembly and the United Kingdom by eliminating the constitutive role that EU law currently plays in the definition of competences under the Northern Ireland Act.

I have already touched upon that, my Lords, and it doesn't appear to me that that takes the case anywhere.

Thirdly, it is argued that notification would frustrate the purpose and intention of the Act, as it would run contrary to the continued application of EU law in Northern Ireland, and more particularly would impact upon the operation of cross-border bodies.

This is quite a complex area, and it is a point that was majored upon by those appearing for Agnew before Mr Justice Maguire. It is possible that one could deal with this at some considerable length, but in view of the time available, what I would say is this: that the line of argument is simply unfounded. The relevant implementation bodies that are referred to, one in particular which is relied upon is the special EU programme body, are not fixed and determined for all time coming by the Northern Ireland Act.

What I would ask is that I might respond to any point that is made by my learned friends with regard to this issue in reply, but shortly put, first of all, they seek to rely upon the Belfast agreement --

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