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

Exactly so, my Lord, and again, I don't want to develop that too far, but what McCord attempts to suggest is that section 1 of the Northern Ireland Act is directed to maintaining Northern Ireland within the EU, when in fact, of course, it is concerned with a more binary decision, which is whether Northern Ireland should cease to be part of the United Kingdom and form part of united Ireland. There is not scope for introducing into that binary question the question of its status within the EU.

So the case simply doesn't get off the ground in that context, and in that regard I would notice that Mr Justice Maguire addressed this point at paragraph 152 of his judgment. That is in volume 1 of the Northern Ireland material, tab 14, MS 20372, where he observed:

"The court is unaware of any specific provision in the Good Friday agreement ... 1998 Act which confirms the existence of the limitation which the applicant contends for and which establishes a norm that any change to the constitutional arrangements for the Government of Northern Ireland and in particular withdrawal by United Kingdom from the EU can only be effected with the consent of the people of Northern Ireland. While it is correct that section 1 of the 1998 Act does deal with the question of the constitutional status of Northern Ireland, it is of no benefit to the applicant in respect of the question now under consideration, as it is clear that under this section, and the relevant portion of the Good Friday agreement, being the Belfast agreement, is considering the issue only in the particular context of whether Northern Ireland should remain as part of the United Kingdom or united Ireland."

I would respectfully observe that that correctly states the relevant position.

So in summary, my Lord, the devolved legislation actually takes the court nowhere in the determination of the issue which it has to decide in the present case.

There is no means by which you can suggest that the exercise of the foreign affairs prerogative, which is what we are actually here to address, is in any way impinged or qualified by the devolution legislation.

Can I move on, from the legislation as such, to the operation of the Sewell convention. This is perhaps where the Lord Advocate seeks to make as much as of a case as he can, with regard to the idea that somehow the constitutional requirements of Article 50 are qualified by the consequences of the devolved legislation. The convention, as your Lordships will be aware, takes its name from the statement of Lord Sewell when he was minister of state in the Scotland office during the second reading of the Scotland bill in 1998. The relevant quotation can be found in volume A29, tab 388 --

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