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

It is a statutory instrument made under the Northern Ireland Act, my Lord, giving effect to it, because as the Attorney pointed out yesterday, there had to be a further agreement after this to establish the six implementation bodies, but we say, looking at this statute, the implementation of EU policies and programmes on a joint all Ireland basis is clearly a core part of the North South Ministerial Council's functions set out in part 5, and it is therefore likely to form a significant element of the work of several, if not all, of the implementation bodies which were required to be established by the agreements, and which were in fact established by the implementation bodies' order which I have just mentioned.

So the point could rest there, we say, on the basis of the 1998 Act, but it is strengthened, we submit, when one has regard to the establishment of the special EU programmes body, which was one of the few implementation bodies agreed, north and south, and which was specifically set up by the 1999 order.

Its functions are to administer EU programmes both north and south of the border, to assist both governments in continuing negotiations with the EU commission about future programmes, and indeed whose current work involves programmes extending into 2020.

So, my Lords we say if there was ever any choice on the part of the North South Ministerial Council to leave EU policies to one side, we say that is an incorrect reading of strand two, but if there was ever such a choice, that choice has now gone by the legislative choice set out in the 1999 order. My Lords, my Lady, we say the work of this particular body and the statutory functions which have been assigned to it will essentially evaporate in the event that the UK and Northern Ireland leave the EU.

It is not sufficient to say, as the Government does, that those who staff the body may still have some interesting things to talk about. These are bodies, see strand 2, paragraph 11, which must have a clear operational remit and actually implement policies on an all-Ireland, all-island, and cross-border basis. We say, my Lords, that this is not a matter of small moment.

As the court will recall, the Belfast agreement makes absolutely clear that all of the arrangements hang together and are interlocking and interdependent. Your Lordships see that reference at paragraph 5 of the declaration of support, MS 20343 to 20344.

So, my Lords, even if breaking faith with these agreements is something which as a matter of domestic law, Parliament can do, it can amend the 1998 Act, it can make clear that the North South Ministerial Council no longer has all of the functions set out in strand two, it can amend or scrap the implementation bodies' order or parts of it; the point we make is that that is something that must be done again by legislation, because otherwise legislation of constitutional significance would be frustrated or defeated by the effects of an Article 50 notice without parliamentary sanction.

My Lords, before I move on to issue two, there is one further discrete submission I want to make in response to the Government's case on the devolution statutes. The Advocate General took a very broad brush approach to the devolution statutes, and said under each of them, foreign relations are expressly reserved and that the devolved legislatures have no competence in relation to them, and that therefore they can have nothing to say about the exercise of the foreign affairs prerogative. We say that in Northern Ireland that is not a correct starting point as a matter of law, and in any event the conclusion does not follow from the premise.

Can I just give your Lordships a reference to paragraph 3 of schedule 2 of the Northern Ireland Act, which your Lordships will find at and your Ladyship will find, MS 20154. That makes clear that there are certain elements of international relations which are transferred to the Northern Ireland authorities.

So carved out of the general accepted matter of international relations are north/south cooperation in relation to policing; the exercise of legislative powers to give effect to the north/south arrangements and agreements of implementation bodies; the observance and implementation of obligations under the British-Irish agreement; and effectively all of part 5 of the Act; and also observing and implementing obligations under EU law.

So these are all areas of international relations which are not accepted and which are therefore transferred.

But even assuming that international relations was entirely an accepted matter under the Northern Ireland Act, that says nothing about the power of the Westminster Parliament in that act to displace or abrogate the prerogative.

My Lords, my Lady, issue two arises only if the court determines in this reference or in the Miller appeal that an Act of Parliament is required to authorise the giving of an Article 50 notice.

The further question is whether that is a constitutional requirement in the United Kingdom, that the legislative consent convention be complied with. We say that it is, and on this issue we are supported again by the Lord Advocate, and again I adopt the Lord Advocate's submissions in his written case and hope to confine my submissions accordingly.

Two brief introductory points, although as I see the time, it may be two brief final points.

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