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

I would just observe, my Lord, that it doesn't, but I will come on just to make that point. Clearly, what my Lord says in my submission remains true, that this is a political restriction upon Parliament's ability to act, no more and no less than that.

In our case, we also make reference to the Rhodesian case, the southern Rhodesian case of Madzimbamuto. I am not going to take your Lordships to it, you have it in the case, but in my submission essentially Lord Reed in that case was making the same point that: here you have a convention but it is just that, it is no more than that; it is not some qualification or inhibition upon parliamentary sovereignty.

The Lord Advocate does seek to make the case that somehow a convention can transmogrify into a legal requirement, and he makes reference, amongst other things, to the Crossman Diaries case, the Jonathan Cape case. It is at CA4, volume CA4, tab 245. I am not going to go to it, but I simply draw your Lordship's attention to a commentary, a very helpful commentary on that case, from Professor Bradley in one of his works, and that can be found at volume A31, tab 416, MS 10531, where he puts the Jonathan Cape case in its proper context. It is a context that clearly conflicts with the approach adopted by the Lord Advocate.

There is reference, particularly in the McCord case, to a great deal of Canadian material which is not of any great assistance, but again, I would just mention in passing a decision of the Supreme Court of Canada in the Manitoba reference case in this context. It is at volume A25, tab 305, MS 8783, and it is a passage that I am not going to quote, from MS 8795 to MS 8799. Essentially, the majority judgment of the Supreme Court in Canada is that there is no authority for the proposition then being advanced that a convention can crystallise into law.

That chimes very readily with the Dysian observation that conventions are not in reality laws at all, since they are not enforced by the courts.

So, my Lords, the Sewell convention is a political convention concerning the legislative functions of the Westminster Parliament. It is, as I say, essentially a self-denying ordinance on the part of Parliament. It was never intended to be a justiciable legal principle, and as my Lord, Lord Reed has already correctly observed, it is a political restriction on Parliament's ability to legislate in respect of devolved matters.

The correct legal position is that Parliament is sovereign, and may legislate at any time on any matter, and that is specifically set out in the devolved legislation itself, section 28(7) of the Scotland Act, section 5(6) of the Northern Ireland Act, section 107(5) of the Government of Wales Act.

In my respectful submission the Lord Advocate is plainly wrong as a matter of constitutional law to assert, as he does, at paragraph 30 of his printed case that I took your Lordships to at the outset, that the freedom of the United Kingdom Parliament is constrained by the constitutional conventions which apply when Parliament legislates with regard to devolved matters.

That, in my respectful submission, is clearly not the case.

Now, to take up my Lord, Lord Reed's point, nothing in that analysis is affected by the amendment of section 28 of the Scotland Act by section 2 of the Scotland Act 2016. Section 2 of the Scotland Act 2016 has the headnote, "Sewell convention". It was not taking the matter any further than the expression of the convention that we have already seen. That is now section 28(8) of the Scotland Act 1998, which says that -- so again I pause to observe:

"It is recognised that the Parliament of the United Kingdom will not normally [again, I emphasise "normally"] legislate with regard to devolved matters without the consent of the Scottish Parliament."

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