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

We submit that those rights cannot lawfully be defeated, frustrated or stripped of all content by the exercise of the royal prerogative.

Now, the court will immediately see that that argument is a variation on the central case which is advanced by Lord Pannick for Ms Miller. I gratefully adopt his submissions on that issue and don't for a moment pretend that I could improve upon them, but the court has a brief written summary of our response to the Government's case in Miller, in our printed case at paragraphs 92 to 104. We simply add the concise point that the essential purpose of the dualist theory is to protect the position of Parliament as against the executive, rather than, as the Government seeks to have it, to protect the position of the executive against Parliament.

My Lords, my Lady, issue one, the second strand, the alteration of the devolution settlement. This strand of our case is that the removal of EU law obligations as they apply in the EU, or as they apply in the UK rather, significantly alters the competence of the devolved administration in Northern Ireland. In other words, it materially alters the carefully constructed devolution settlement, and it does so, we submit, in at least two ways.

Firstly, as we have seen, since the legislative and executive competence of the devolved authorities of Northern Ireland is limited by the operation of EU law, that is section 6 and section 24 read with section 98(1), the removal of EU law obligations necessarily increases that competence. The administration will be able to do things which up to now it has been precluded from doing by EU law restrictions.

But, secondly, since observing and implementing obligations under EU law is a transferred matter -- that is in a provision we will look at in due course -- the hollowing out of EU law obligations also necessarily removes some areas of devolved responsibility. So the administration will not be able to do some things which up to now have been its responsibility.

In our submission, such an alteration of the devolution settlement in Northern Ireland cannot be affected by the executive alone acting by means of the royal prerogative. To do so offends the legal principle that the law cannot be altered by means of the prerogative alone; much less, we say, can a constitutional statute or indeed a constitution as the Northern Ireland Act is. That would require clear words, even in a later statute, for it to be impliedly repealed or become otiose.

My Lords, my Lady, a distinct but related point in this strand is that the use of the prerogative in this way also circumvents or sidesteps the usual requirements for an amendment of the devolution scheme. That usually requires either an act of the Westminster Parliament or an order in council under section 4 of the Northern Ireland Act, converting a reserved matter into a transferred matter, or vice versa, and the court will find section 4 at MS 20044.

When one looks at section 4, one sees that any such order in council requires not only approval by each House of Parliament, but also a resolution passed in the Northern Ireland assembly itself, praying in favour of the change, and, given the sensitivity that there is with tinkering with the devolution settlement in Northern Ireland, that resolution also requires to be passed with defined cross-community consent. That is section 4(2)(a) and 4(3).

We submit that the use of the prerogative permitting the executive to effect such a change without those protections frustrates the purpose and effect of those provisions.

My Lords, my Lady, that strand of our case on issue one has been taken up by both the Lord Advocate on behalf of the Scottish Government and the Counsel General on behalf of the Welsh Government in their submissions to the court, and assuming their submissions orally are consistent with their written cases, we respectively adopt those submissions also.

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