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

I began with that point that in the context of this appeal, this case, we don't even get close to addressing the Sewell convention, and indeed the legal irrelevance of the Sewell convention is actually expressly accepted by the Counsel General for Wales in his printed case at paragraph 70.

He makes clear that he is not arguing that the Welsh Assembly has a legally enforceable right to veto any Westminster legislation authorising Article 50 to be triggered, although he then argues that the use of the prerogative to trigger Article 50 will circumvent the application of the convention, a point that I will come back to in a moment.

The Lord Advocate in his intervention does, however, maintain that a legislative consent motion of the Scottish Parliament is, as he puts it, a constitutional requirement within Article 50 alongside an act of the Westminster Parliament before a valid decision in the United Kingdom could be made with regard to withdrawal from the EU.

Now, I would just observe this, my Lord. A great deal is made by the Lord Advocate in his case of the legislative consent procedure. The idea of the legislative consent motion. But the Sewell convention in fact says nothing about LCMs; it says nothing about the practice by which consent, if required or sought, should be given with regard to legislation that relates to a devolved matter.

So although LCMs are the currently preferred procedure, that is a matter entirely for the internal standing orders of the devolved legislatures. The seeking of an LCM is commenced and controlled entirely by the devolved legislatures, not by Parliament. If the devolved legislatures wish to indicate their consent in some other form, then they are perfectly free to go and do that.

Conversely, there have been instances where, for example, the Welsh Assembly has put up a legislative consent memorandum and then refused to pass a motion in circumstances where the UK Parliament did not consider that it was legislating with regard to a devolved matter, but the Welsh Assembly wished to make a political statement that they felt that they were, and that happened, I believe, with regard to the Agricultural Workers bill at an earlier stage.

Again, I emphasise a point that has already been made, the issue of the Sewell convention and of legislative consent motion simply does not arise in this appeal. This case does not concern the passage of legislation and that, in my respectful submission, is a complete answer to the rather surprising proposition made by the Lord Advocate that there is an issue properly in dispute between the parties with regard to that matter. That is a point he seeks to make at paragraph 84 of his case.

At the end of the day, the Sewell convention is wholly irrelevant to this appeal and indeed to the conduct of foreign affairs. I would just note that in his written case, the Lord Advocate provides an annex setting out where legislative consent motions have been sought or have been passed with regard to devolved legislation, and it is perhaps notable that what is absent from the annex is the European Communities (Amendment) Act 2002, the European Parliamentary Elections Act 2002, the European Union (Amendment) Act 2008, the European Union Act 2011 or indeed the European Union Referendum Act 2015.

So it would be somewhat surprising if those had been overlooked, if they do have the relevance in the context of a constitutional convention that the Lord Advocate now seeks to argue.

The conclusion of the Article 50 case advanced by the Lord Advocate is that there is by virtue of the Sewell convention a constitutional requirement, using the terms of Article 50, that must apply before the United Kingdom -- and takes steps in terms of Article 50 to leave the EU.

However, the Lord Advocate makes no effort in his case to explain how a convention which provides in terms that it does not apply as a rule in all circumstances, could even be a requirement, let alone a constitutional requirement and therefore there is doubt as to where that case actually goes.

In my respectful submission, there is no substance in the case that is being advanced there by the Lord Advocate.

I mentioned a moment ago the Counsel General for Wales' argument that the exercise of the prerogative would be an avoidance of the Sewell convention or would, as he puts it, short-circuit the Sewell convention and in my respectful submission that simply cannot be right. The convention could not apply to legislation authorising the issue of the Article 50 notification, because it is a reserved and not a devolved matter, so nothing in general is being avoided.

The convention cannot be enforced in law in circumstances in which it might appear to fall within the purview, where there is a bill of the Westminster Parliament which might affect devolved competences. So it cannot possibly apply in regard to the invocation of the prerogative.

It just does not follow.

In any event, if there was a dispute on that, it would not be justiciable.

In summing up on the question of the Sewell convention my Lords, what I would say is this: it is not necessary and certainly not appropriate to consider the functions of the Sewell convention in the context of this appeal. No basis for that has been made out.

My Lords, I was going to move on to certain particular points that arise in the context of Northern Ireland and the consideration of the Northern Ireland Act against the background of the Belfast agreement, because as Lord Hoffmann observed in the Robinson case, the Belfast agreement essentially frames the (Inaudible) constitutional statute. In view of the time available, I will just make one short observation.

The Belfast agreement, which can be found in the Northern Ireland materials at volume 1, tab 14 at MS 20372 provides at paragraph 7 for parties to address any difficulties that would arise in the context of the agreement being implemented. If I could just turn to that.

All it indicates, and I invite your Lordships to consider it, is the inherently flexible nature of the Belfast agreement to deal with events that had not been anticipated at the time the agreement was entered into. The Belfast agreement is not a legally enforceable agreement in one sense, but it is a critically important political agreement which does have appended to it an international treaty in the form of a British-Irish agreement.

We entirely concur with Lord Hoffmann's observations, that it (Inaudible) the Northern Ireland Act, but there is nothing in the Belfast agreement that fixes in all time coming something such as the joint implementation bodies which are referred to in the Agnew case, for example, and that should be borne in mind.

The second distinct question that arises in the Agnew reference concerns section 75 of the Northern Ireland Act 1998, which is the equalities provision. It is the equivalent of section 149 of our own equalities Act, and I am content there to adopt the analysis of that case, which is set forth at pages 50 to 63 of the written case that has been provided to me by Dr McGleenan and sets out why that is not relevant to the determination of the present issue.

My Lords, that, rather swiftly and briefly, is all that I would have to say at this time with regard to devolved legislation in the context of the present appeal.

Could I just make one further observation. My Lord Mance referred to the Referendum Act 2015 as leaving us in the air. In my respectful submission, it does no such thing. One has to consider the foreign affairs prerogative today in light, not just of the 1972 Act but also in light of the 2015 Act. Both are of constitutional significance.

Now, it is argued against us that as a consequence of the 1972 Act and in particular section 2, the executive was restrained in the exercise of the foreign affairs prerogative. It certainly didn't disappear, it was used constantly for the next 43 years in order to bring EU law into our domestic domain, but one has to look at the foreign affairs prerogative in the context not only of the 1972 Act but the 2015 Act.

What was Parliament doing? Parliament was aware of Article 50. Parliament was aware of the foreign affairs prerogative. Parliament passed the Referendum Act for the purpose of letting the people decide whether or not we would leave the EU, and as my Lord Clarke observed, Parliament was silent as to whether and when Article 50 would be triggered by the giving of notice. It was silent on the matter.

It knew that it was open to the executive to exercise the foreign affairs prerogative, particularly after the 2015 Act. If Parliament wished to intervene to prevent the executive exercising that prerogative, it would do so. It is a matter for Parliament. Parliament has remained silent and in my respectful submission, and with all due respect to the court, it is not for the court to fill in that which Parliament declined to. Parliament could decide tomorrow to prohibit the executive from exercising the foreign affairs prerogative in order to give notice under Article 50.

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