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

Section 1 is at MS 20044. And the McCord case is about section 1 of the 1998 act.

Now, section 1 deals with three things. Officially it confirms the existing status of Northern Ireland as part of the United Kingdom. Secondly it provides that there is to be no change in that status without a majority of people voting that way in a referendum held for that purpose; schedule 1 makes provision for that. Then thirdly, in subsection (2), it makes provision for effect being given to the wishes of the majority if the majority, voting in such a poll, express a wish to leave the United Kingdom.

It is entirely and exclusively about the status of Northern Ireland within the UK, and we say that not even the most daring eisegesis transforms the provision that is addressed solely to the status of Northern Ireland as part of the United Kingdom into a provision that is also somehow about the EU membership of the United Kingdom.

Naturally, a variety of factors will come into play to determine the relative electoral attractiveness of the options that are available to voters in Northern Ireland if a poll is held under section 1 of the Act, but they -- any factor that makes it more or less attractive to vote one way or another in a poll held for the purposes of section 1, does not, to use the words of the McCord issue, impede the operation of section 1 of the 1998 Act. In fact that is precisely what section 1 is designed to accommodate and to address.

So we say that the answer to the McCord question is simply no.

I am now going to turn, my Lady and my Lords, to the first of the High Court devolution issues and that is whether any provision of the Northern Ireland Act excludes expressly or by necessary implication the operation of prerogative power to give notice under Article 50, and I am going, if it is convenient, to approach that under four headings.

Firstly I am going to look briefly at the assistance that one has to the interpretation of the Northern Ireland Act 1998, and secondly and thirdly I am going to look at the Belfast agreement and the British-Irish agreement, and then fourthly I am going to, I hope speedily, go through the 1998 Act and draw attention to the EU aspects that might be said to be contained within it.

So firstly, then, to the interpretative approach to the Northern Ireland Act 1998. Lord Bingham in Robinson famously, and I know the court has been over this, observed that the Northern Ireland Act 1998 is in effect a constitution, which Lord Hoffmann in the same case was a little bolder and described it as a constitution. He suggested that these provisions should be interpreted generously and purposively. For the note, Robinson is in core volume 4 at tab 81.

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